(03) 9720 2922

Jansen Walsh & Grace


Joint tenants or tenants in common?  "What's the difference?"

If you hold a property with your spouse or partner as joint proprietors, you cannot devise your share under you will.  On the death of the one of the spouses or partners, the whole property automatically devolves to the surviving at the moment of death.  The surviving spouse or partner becomes the sole owner.  This is recorded on the title through a survivorship application.

If you hold a property with your spouse or partner as tenants in common, you can devise your share in your will.  On your death, the executor of your will will have to obtain a grant of probate from the Supreme Court and make a transmission application before the executor can transfer your share to the beneficiary in your will to whom you devised your share.

Transfer of principal place of residence or main residence

A transfer by spouses or domestic partners of their principal place of residence is exempt from land transfer duty under subsection 43(3) of the Duties Act 2000.  The Duties Act will be amended from 1 July 2018 to ensure that the existence of a mortgage is not an impediment to the application of the exemption under section 43.  A transfer of the main residence is exempt from capital gains tax.

Transfer of investment or rental properties: no breakdown
Transfers of investment and rental properties between spouses and domestic partners are subject to land transfer duty on the market value of the property.  You can calculate the land transfer duty and the transfer registration fee, if you wish.

The transfer also triggers a CGT event, and the transferor must pay capital gains tax on the market value of the property less the cost base.

For this reason, many couples prefer to do this through devises in their wills.

Transfer of investment or rental properties: breakdown
There is no land transfer duty in he case of a break-down in the relationship.

An exemption from CGT also exists if the transfer is a result of a breakdown in the relationship.  However, you require a court order or a binding financial agreement.

Stage 4 Lock-down
We can do all this during the Stage 4 Lock-down if you both have access to a mobile phone and e-mail.