Severing a Joint Tenancy – what you need to know

When you buy property with another person in New South Wales (NSW), you may own it with the other person as joint tenants or tenants in common. If the property is owned as joint tenants this means that each owner owns the whole property together with the other owners, rather than each owner having a separate share. One of the key features of joint tenancy is the right of survivorship, which means if one owner dies, their share automatically goes to the surviving owners, no matter what the deceased owner’s will says.

Sometimes an owner might not want this anymore. They may want to leave their share to someone else, like a child or partner. In that case, they can sever the joint tenancy which means they change the type of ownership so that their share is treated separately as tenants in common, where each person owns a defined share of the property and can leave it to anyone they choose.

There are different ways to legally end a joint tenancy:

1.  Unilaterally, meaning you can do it alone

You do not need everyone to agree to sever the joint tenancy. One joint tenant can do it on their own by completing a Transfer Severing Tenancy form and registering that transfer with NSW Land Registry Services.

You will need to provide the names and addresses of the other joint owner.

Once registered, the joint tenancy is severed, and that person now owns their share separately as a tenant in common.

The other joint tenant(s) usually need to be notified that this has happened—unless the severance was ordered by a Court or made through certain legal procedures (like enforcement of a debt).

2. Mutual agreement by all owners

Another way to sever a joint tenancy is by mutual agreement. If all the joint tenants decide together that they want to change to tenants in common, they can sign a Transfer Altering Tenancy and register that transfer with NSW Land Registry Services.

This is often done when owners want to make sure each individual’s share in the property is protected or passed on according to their will.

3. Act of a Joint Tenant Showing Intention to Sever

An act inconsistent with joint tenancy—such as signing a transfer to sell one owner’s interest may also sever the joint tenancy, especially if it reflects an intention to sever.  This will generally need to be enforced by legal action or Court recognition.

Why Timing and Registration Matter

Several Court cases show how important it is to complete all steps properly and on time:

• In Corin v Patton (1990) 169 CLR 540, the Court said that if a person does everything needed to give their share to someone else, the joint tenancy can be severed—even if the transfer wasn’t officially registered before they passed away.
• However, in McCoy v Estate of Peter Anthony Caelli, the severance was not effectivebecause the transfer was not registered before the person died. The result was that the deceased’s  share passed automatically to the surviving joint tenant under the original joint tenancy rules.

Severing a joint tenancy can be a crucial step in ensuring your property interests are handled according to your wishes—especially when you want your share to pass to someone other than the surviving co-owner.  As the cases above show, timing and correct legal procedures are vital to avoid unintended consequences.

If you are considering severing a joint tenancy, or need advice about your property ownership structure, the experienced Sutherland Shire team at Solari & Stock Lawyers can help guide you through the process and ensure everything is done properly, and we welcome you to contact us to discuss any concerns further. Contact our Commercial Team of Michael Solari and Valentina Abouzeid on 8525 2700 or click here to request an appointment.

Article by Valentina Abouzeid
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