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Joint Tenancy in NSW - Property and Bank Accounts
I have been asked to explain the concept of Joint Tenancy in New South Wales.
The legal concept of joint tenancy plays a vital role in how assets are co-owned in New South Wales, whether it be a family home or a joint bank account. But where did this principle originate, and how does it apply differently to real property and personal property like bank accounts?
Joint Tenancy in Real Property: A Colonial Inheritance
Joint tenancy in NSW property law has its roots firmly embedded in English common law. When the British colonised Australia, they imported legal doctrines from England, including the common law principles of land ownership. Among these was the concept of joint tenancy — where two or more people hold undivided, equal interests in property, and upon the death of one, the right of survivorship ensures their share passes automatically to the surviving owner(s), outside the will or estate.
This concept was formalised in NSW through two key statutes:
The Real Property Act 1900: This Act governs the registration and dealings in land under the Torrens Title system. It provides for the recording of joint ownership on the land title.
The Conveyancing Act 1919 (NSW): This statute clarifies how co-ownership operates. Importantly, Section 26 provides that unless a contrary intention is expressed, co-owners are presumed to be tenants in common - meaning joint tenancy must be deliberately chosen and clearly stated.
Despite this statutory framework, many foundational rules - such as the four unities (time, title, interest, and possession) and the right of survivorship - continue to operate under common law, creating a hybrid legal structure where historical doctrines and modern legislation intersect.
Joint Bank Accounts: A Presumption, not a Rule
Unlike real property, joint bank accounts are governed not by land law but by contract law, banking practice, and equity. Nevertheless, the language of joint tenancy is often applied to these accounts. Where two or more people open a joint bank account in NSW, the general presumption is that they hold the funds as joint tenants. Upon the death of one account holder, the surviving holder is presumed to take full ownership of the account by survivorship. However, this is not absolute. The courts treat this as a rebuttable presumption, focusing on the true intention of the parties. For example:
If one person provided all the funds,
If the account was opened solely for administrative convenience, or
If evidence (including a will) indicates the deceased did not intend for the survivor to inherit the funds,
then the surviving account holder may be found to hold the funds on a resulting trust for the estate of the deceased. The courts have confirmed that intention is everything - not merely the account title or the bank’s internal paperwork.
Why This Matters
Understanding the distinctions and presumptions between real property and personal property like bank accounts is crucial for estate planning, financial management, and avoiding legal disputes. Whether you’re purchasing property jointly or sharing a bank account with a family member, clear documentation and awareness of legal consequences are key.
Takeaway Tips:
When purchasing property with others, specify whether you intend a joint tenancy or tenancy in common.
For joint bank accounts, ensure that the ownership intentions are clearly documented, especially in estate planning.
Seek legal advice if you’re unsure how your ownership arrangement will be interpreted.
Need Help Navigating Co-Ownership?
Our team can assist you in understanding and structuring co-ownership arrangements that reflect your intentions - for both property and personal assets. This has importance in purchasing real property such as land, houses and units and the drafting of wills. If you or someone you know needs assistance with any of these areas, do not hesitate in contacting me.
Have a wonderful day,
Jeffrey Choy
0419 233 670
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Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.
