How to Sell Your Property in Australia

Selling a property in Australia can be a complex process, especially if you are a tenant in common. Understanding your rights and the steps involved can help ensure a smooth and successful sale. In this article, we will explore the concept of tenancy in common, compare it to joint tenancy, and discuss the rights and procedures for selling property as a tenant in common in Australia.

What is a Tenant in Common?

A tenant in common is a type of co-owner who holds a distinct share of a property. Unlike joint tenants, who each own the whole property, tenants in common have individual, fixed undivided shares. For example, you may own 50% of the property as a tenant in common. Your share does not change unless you take specific actions to alter it.

Tenants in common can have unequal shares of the property. While co-owners can agree on a division of ownership, disputes may arise. In such cases, courts can overrule the agreement and determine the division based on each co-owner’s financial contributions to the property’s value. Despite owning a specific share, each co-owner has the right to possess and enjoy the entire property. Additionally, tenants in common can leave their share to others in their will.

To better understand the concept of tenancy in common, let’s compare it to joint tenancy.

Joint Tenancy

Joint tenancy is another form of co-ownership where each joint tenant owns the whole property. Unlike tenants in common, joint tenants have equal potential shares and must derive their interest from the same legal instrument at the same time.

One significant difference between joint tenancy and tenancy in common is the right of survivorship. In joint tenancy, if a joint tenant passes away, their share automatically goes to the surviving joint tenants. If there is only one surviving joint tenant, they become the sole owner of the property. This right of survivorship prevents joint tenants from leaving their share to others in a will.

Additionally, joint tenants can sell their potential share, severing the joint tenancy. The new owner of the sold share becomes a tenant in common, while the remaining joint tenants maintain their joint tenancy.

Selling Property as a Tenant in Common

As a tenant in common, you have the right to sell your fixed share of the property. The buyer of your share will also become a tenant in common. However, it’s important to note that you can only sell your share to another co-owner of the same property. If there are only two co-owners, the remaining co-owner becomes the sole owner after the sale. Alternatively, all co-owners can coordinate a simultaneous sale of their shares to a third party, effectively ending the co-ownership and making the third party the sole owner.

In cases where the co-ownership has broken down, a court may order the sale of the property. Any co-owner can apply to the court for this, and it is seldom refused. The court will then determine the rightful share of each co-owner based on their proportion of interest in the property as a tenant in common. The court may also consider factors such as occupation fees owed by other co-owners, reimbursements for contributions made to improve the property’s value, and claims against rent or profit collected by another co-owner.

To protect your rights as a co-owner and ensure a smooth sale, it is crucial to consult a property lawyer who specializes in tenancy in common.

Conclusion

Selling a property as a tenant in common in Australia involves distinct rights and procedures. Understanding the concept of tenancy in common, along with its differences from joint tenancy, can help you navigate the selling process more effectively. Whether you choose to sell your share to another co-owner or coordinate a simultaneous sale to a third party, consulting a property lawyer will ensure that your rights and interests are protected throughout the transaction.

For expert guidance and assistance with selling your property in Australia, contact Down Under Realty, the leading property experts in the region. Their experienced team of professionals will provide you with the necessary support and advice to achieve a successful sale.