Most co-owners assume that changing how property is held requires the other owner's agreement. That is not correct for a joint tenancy in Queensland. A joint tenant can sever the tenancy unilaterally, without the other owner's knowledge or consent, and the change takes effect on registration.
The difference between joint tenants and tenants in common is more significant than most people realise. As joint tenants, each owner holds the whole property with the other, and when one dies their share passes automatically to the survivor by right of survivorship. As tenants in common, each owner holds a distinct share that can be left by will, sold or mortgaged independently. Severing the joint tenancy converts the first arrangement into the second.
Brookwater Legal helps clients across Greater Springfield and Ipswich with property ownership changes, including severance of joint tenancies and related transfers.
Here is how severing a joint tenancy generally works in Queensland, and what the process means for your ownership rights.
Key takeaways
- A joint tenant can sever the tenancy without the other owner's consent.
- Severance means each owner holds a distinct share that can pass by will.
- No transfer duty applies where each owner's share value stays the same.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What is the difference between joint tenants and tenants in common in Queensland?
Joint tenants and tenants in common each own property with another person, but the legal consequences could not be more different, according to Titles Queensland's Land Title Practice Manual. Joint tenants hold the property together as a whole, with no distinct individual shares. Tenants in common each hold a specific fractional share, which may be equal or unequal and is shown on the title as a fraction.
The critical consequence is what happens on death. A joint tenant's interest passes automatically to the surviving joint tenant or tenants by right of survivorship, regardless of anything in the deceased's will. A tenant in common's share passes under their will or, if they die without one, under Queensland's intestacy rules. This makes the distinction central to estate planning, particularly for blended families, business partners who co-own property, and couples who want each partner's share to be available to their own children or beneficiaries.
Titles Queensland's practice notes confirm that where two or more transferees do not state how they hold the property, the Registrar will treat them as tenants in common after seeking written confirmation. It is a common oversight that has significant legal consequences and is worth reviewing on any co-owned title.
Who can sever a joint tenancy in Queensland, and how?
Queensland's Land Title Act allows one joint tenant to sever the tenancy unilaterally by transferring their proportionate share to themselves, according to Titles Queensland's Land Title Practice Manual. No agreement from the other joint tenant is required. The severing joint tenant must, however, give the other joint tenant a copy of the transfer, or attempt to do so, before or as soon as practicable after the transfer is lodged.
All joint owners may also sever the tenancy together by mutual agreement, which is often the approach taken when both parties want the change and are co-operating. A transfer of the whole property to a third party also severs the joint tenancy at common law, but that is a separate transaction involving a sale or gift rather than a change of tenure arrangement.
"Severing a joint tenancy is one of those changes that looks simple on the surface but has lasting consequences for how property passes when someone dies. Getting the title right from the outset saves significant cost and complexity later."
Jade Kickbusch, Principal, Brookwater Legal
What are the transfer duty rules for severing a joint tenancy in Queensland?
A change of tenure that does not alter any owner's share value generally attracts no transfer duty, according to the Queensland Revenue Office. The home or property owner exemption covers a transfer where the owners change from joint tenants to tenants in common, or the reverse, as long as each owner's proportionate share value stays the same.
The Queensland Revenue Office gives the example of two brothers who hold an investment property as joint tenants and change it to tenants in common for estate planning. Where the shares stay equal, the change of tenure exemption applies. If the shares change at the same time as the tenure type, the transaction steps outside the exemption and duty may be assessed on the transferred interest.
A transfer of an interest in the principal place of residence to a spouse, including a de facto partner of two or more years, as a gift is covered by a separate spouse transfer exemption, where afterwards the couple own the whole home as joint tenants or equal tenants in common and it is their principal place of residence. The Revenue Office notes that a transfer to a spouse can affect the transferee's land tax position, so obtaining advice on the full picture is worthwhile before proceeding.
When does severing a joint tenancy not apply to your situation?
Severance changes who owns the property and how it passes on death. It does not divide the property physically, decide who occupies it, or resolve any dispute about its value or use. Where co-owners cannot agree on how to deal with a property, Queensland's Property Law Act provides a separate pathway: either co-owner may apply to the court for an order for sale and division of the proceeds, a physical division of the property, or both. The court may make any order the case requires to ensure a just and fair outcome.
Severance also does not apply where a deceased owner held the property as a joint tenant rather than as a tenant in common. In that case, survivorship has already operated and the interest has vested in the surviving owner. The process for recording that event is a request to record death, not a severance. Similarly, severance is not available for only part of a lot, and the Land Title Act does not permit an adverse possession application to be made on the basis of a fence or enclosure that encroaches across the true boundary. These are separate legal concepts and are dealt with through different processes.
How does a solicitor help with severing a joint tenancy in Queensland?
Step 1: Talk to us
Get in touch and we'll explain how the process generally works and what the title change means for your ownership and estate planning.
Step 2: Review the title and confirm the arrangement
We obtain a current title search to confirm how the property is currently held, identify any registered mortgages, caveats or other encumbrances, and confirm the proposed arrangement with you.
Step 3: Prepare and lodge the transfer
We prepare the Form 1 Transfer from you to yourself showing the new tenancy type, arrange execution and witnessing, attend to the duty notation with the Queensland Revenue Office, and lodge the transfer electronically through the Titles Queensland system.
Step 4: Confirm registration and notify where required
Once Titles Queensland registers the transfer, we confirm the new title position, provide the registered title search, and attend to any notice obligations to the other joint tenant where a unilateral severance has been lodged.
| Get in touch Need help with severing a joint tenancy? We're an experienced team who keep you well informed at every stage of the process. Get in touch to discuss your needs. |
What happens to a mortgage when a joint tenancy is severed in Queensland?
A registered mortgage affects the title regardless of how the owners hold their interest. Severing the joint tenancy does not alter or remove the mortgage. The lender's security interest continues over the property and each owner remains bound by the mortgage terms. Where the mortgage is held only in one name, the title change may prompt a conversation with the lender about the position of the other owner, and legal and financial advice is worth obtaining before proceeding.
The Queensland Revenue Office also notes that a transfer of an interest, including a change of tenure, may affect the transferee's land tax position. Land tax is assessed on the total taxable value of freehold land owned in Queensland at midnight on 30 June. Where a change of tenure alters who holds what interest, and for how much of the year, a solicitor can explain what that means in general terms and refer land tax questions to an accountant.
What are the common misunderstandings about joint tenancy severance in Queensland?
The most common misunderstanding is that a will overrides the right of survivorship. It does not. Where property is held as joint tenants, the surviving owner takes the whole property regardless of what the deceased's will says. This surprises many people in blended family situations, where a parent may have intended their share to pass to children from a previous relationship rather than to a current partner. Severing the joint tenancy before death is the mechanism that makes the will effective over that share.
A second misunderstanding is that changing from joint tenants to tenants in common always attracts transfer duty. The Queensland Revenue Office's change of tenure exemption means that where each owner's proportionate share stays the same, no duty is payable. A third common assumption is that both owners must agree. Under Queensland's Land Title Act, one owner acting alone can sever, and the registration is effective once lodged, not once the other owner is notified. The notice obligation exists but is separate from the registration of the transfer itself.
Frequently Asked Questions
Can one owner sever a joint tenancy in Queensland without the other owner's agreement?
Yes. Queensland's Land Title Act allows one joint tenant to sever unilaterally by transferring their proportionate share to themselves, according to Titles Queensland's Land Title Practice Manual. The other owner must be given a copy of the transfer, but their consent is not required for the registration to take effect.
Does severing a joint tenancy in Queensland attract transfer duty?
Generally no, according to the Queensland Revenue Office. The change of tenure exemption applies where each owner's proportionate share value stays the same. If the shares change at the same time, duty may be assessed on the transferred interest.
What is the right of survivorship and how does severance change it in Queensland?
As joint tenants, when one owner dies their interest passes automatically to the survivor, regardless of any will. Severance ends that right. After severance each owner holds a distinct share that can pass under their will or under Queensland's intestacy rules.
Does severing a joint tenancy in Queensland affect an existing mortgage on the property?
No. A registered mortgage continues over the property regardless of how the owners hold their interest. Severance does not alter or remove the lender's security, and both owners remain bound by the mortgage terms.
How long does it take to register a severance of joint tenancy with Titles Queensland?
Titles Queensland describes its general service time as 3 to 5 working days for correctly prepared dealings lodged electronically. That is Titles Queensland's own published figure and not a timeframe that applies to any particular matter.
Do you need a solicitor to sever a joint tenancy in Springfield or Ipswich QLD?
Conveyancing in Queensland can only be provided by a qualified solicitor or law practice, according to the Legal Services Commission. A solicitor prepares the transfer, attends to the duty notation, lodges electronically and confirms registration, and can advise on the estate planning and land tax implications of the change. Our conveyancing team acts for clients across Greater Springfield and Ipswich.
Can a joint tenancy be severed if one owner has died in Queensland?
No. Once a joint tenant dies, survivorship has already operated and the deceased's interest has vested in the surviving owner. The correct process at that point is a request to record death with Titles Queensland, not a severance, according to Titles Queensland's Land Title Practice Manual.
Your Next Steps
Getting the ownership structure of co-owned property right matters from the moment a title is created. In Springfield, Ipswich and across Greater Springfield, families and business partners who hold property together often discover the estate planning consequences of their tenure type only when it is too late to change them. A severance of joint tenancy is a straightforward transaction in many cases, but it sits at the intersection of property law, estate planning and, in some cases, duty and land tax, which means the full picture is worth understanding before the paperwork is lodged.
If you're working through a joint tenancy change, the right advice early makes the process simpler. Contact the Brookwater Legal team or call (07) 3437 8555 to talk through where you stand.
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Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
