16 Oct Joint tenants vs tenants in common in NSW: what the difference means if co-owners disagree
Joint tenants own the whole property together. When one dies, their interest passes automatically to the surviving joint tenant or tenants, not under their will. Tenants in common each own a defined share, equal or unequal, which passes under their will. Either way, if the co-owners cannot agree to sell, any one of them can apply to the NSW Supreme Court under section 66G of the Conveyancing Act 1919 to have trustees appointed to sell the property.
How the title records it
When two or more people take an interest in land in NSW, the dealing must state whether they hold as joint tenants or as tenants in common. For tenants in common, each person’s share must be stated as a fraction, for example 2/5 and 3/5.
Joint tenancy
Joint tenants have a right of survivorship. When a joint tenant dies, their interest passes to the surviving joint tenant or tenants. A joint tenant therefore has no interest they can leave to someone else in a will, unless they become the sole owner because the other joint tenants have died first. On Torrens title, the survivor is recorded by registering a Notice of Death.
If one joint tenant transfers their interest to someone else, the joint tenancy is severed for that interest, and the incoming person holds as a tenant in common with the remaining owners.
Tenancy in common
Tenants in common have no right of survivorship. When a tenant in common dies, their share passes under their will or, if there is no will, under the Probate and Administration Act 1898 (NSW). Each tenant in common holds an undivided share: every co-owner has an equal right to possess the whole property, and none has a right to exclusive possession of any part. A tenant in common can deal with their own share without changing the tenancy of the other co-owners.
The difference at a glance
| Joint tenants | Tenants in common | |
|---|---|---|
| Shares | No separate shares; together they own the whole | Defined shares, equal or unequal, shown as fractions on title |
| On death | Passes to the surviving joint tenant(s) | Passes under the owner’s will or the intestacy rules |
| Dealing with an interest | A transfer by one joint tenant severs the joint tenancy for that interest | Each owner can deal with their own share |
| If co-owners cannot agree to sell | Either form of co-ownership: any co-owner can apply under section 66G | |
What happens when co-owners disagree about selling
Section 66G of the Conveyancing Act 1919 applies to any property, other than chattels, held in co-ownership. On the application of one or more of the co-owners, the court may appoint trustees and vest the property in them on a statutory trust for sale or for partition. The step-by-step process is set out in our guide to forcing a sale of jointly owned property in NSW.
Three parts of section 66G matter for joint tenants in particular:
- Death during the proceedings. If a co-owner dies, proceedings already brought by or against them under section 66G survive for or against their estate, despite the rule of survivorship in a joint tenancy.
- No automatic severance. A sale under the statutory trust for sale does not, of itself, sever a joint tenancy.
- Partition instead of sale. If a co-owner satisfies the court that dividing the property would be more beneficial than selling it for the co-owners interested in more than half of its value, the court may order partition instead, with the consent of anyone holding an encumbrance over the whole property, such as a mortgagee.
Related guides
- Jointly owned property disputes: forcing a sale in NSW
- Severing a joint tenancy in NSW
- Bankruptcy and jointly owned property
- Trustee for sale appointments
- Buying out a co-owner in NSW
- Occupation fees and credits when one co-owner lives in the property
Common questions
What is the difference between joint tenants and tenants in common?
Joint tenants own the whole property together and have a right of survivorship, so a deceased joint tenant’s interest passes to the survivors. Tenants in common each own a defined share that passes under their will or the intestacy rules.
Can tenants in common own unequal shares?
Yes. Tenants in common can hold equal or unequal shares, and the shares must be shown on the title as fractions.
Can a joint tenant leave their share in a will?
Not while the joint tenancy continues. A joint tenant’s interest passes to the surviving joint tenants on death, unless the joint tenancy has been severed or the person has become the sole owner.
Can I force a sale if we are joint tenants?
If co-owners cannot agree, any co-owner can apply to the NSW Supreme Court under section 66G of the Conveyancing Act 1919 to have trustees appointed to sell the property. This applies to joint tenants and tenants in common.
Does a court-ordered sale sever a joint tenancy?
Not of itself. Section 66G provides that a sale under the statutory trust for sale does not, of itself, sever a joint tenancy.
Sources: NSW Land Registry Services, What are the types of tenancies in which a property may be held?; Conveyancing Act 1919 (NSW), section 66G. This article is general information, not legal advice about your circumstances. Last reviewed: 16 October 2026.
Written by John Chand, Principal and Registered Liquidator. John has more than 17 years’ insolvency experience. Meet the team.
