Transfer severing a joint tenancy

Form  01TJ (PDF 100 KB)

Dealing type - TJ

Legislation - s97 Real Property Act 1900

Stamp duty - not required.

Certificate of Title - not required.

NOS form - Not required.

Standard form of Caveat - does not prevent registration.

Priority Notice noted on the Register - see Priority Notice page.

Note

  • this form may be used only for a severance of a joint tenancy, i.e. where one or more registered proprietors holding as joint tenants, but fewer than all the registered proprietors, transfers to themselves in order to hold as tenants in common in shares equivalent to the interest held as joint tenants
  • the tenancy and shares held between other registered proprietors not holding as joint tenants with the transferors are not altered by the transfer and
  • if the dealing attempts to alter, add or remove other details, a Transfer form 01T or other suitable form must be used
  • minister's consent is not required for a dealing that only changes the tenancy of the registered proprietors.

Note  For a transfer altering the tenancy of all the registered proprietors from joint tenants to tenants in common in equal shares or from tenants in common in equal shares to joint tenants, use form 01JT.

See Greg Stilianou, Land Titling Law and Practice in NSW, Lawbook Co. 2013 re:

  • procedure for severing a joint tenancy by unilateral action [6.80]
  • notification to a mortgagee, chargee or covenant chargee [6.90]
  • the prescribed statutory declaration [6.100]
  • lodgment [6.110]
  • the Registrar-General’s section 12A notice [6.120]
  • registration of a severing transfer [6.130]
  • death of a joint tenant before registration of the severing transfer [6.140] – [6.210]
  • interplay between a caveat and a severing transfer [6.220] – [6.280].

The transfer must not include any reference to the transferor/transferee being a trustee, executor or administrator for another party.

A transfer of more than one lease, mortgage or charge involving the same mortgagor (e.g. the same lessee) and mortgagee is a multiple instrument. See Fees page.

(A)  Where the severance affects land, the reference to title must be stated.

(B)  Where the severance affects the proprietors of a registered lease, mortgage or charge, the number of the lease, mortgage or charge and the reference to title for the land affected must be stated.

(D)  The full name of the transferor/transferee must be stated and must be identical to the name shown on the Torrens Title Register.

(E)  Specify 'land', 'registered dealing' or 'land and registered dealing' as appropriate.

(F)  The statutory declaration must be made by the transferor/transferee or, where the transferor/transferee is a corporation, by an authorised officer of the corporation, and must be witnessed by a prescribed functionary. Where the declaration has been made outside NSW reference to the Oaths Act 1900 must be deleted, the relevant Act must be inserted and the alteration verified.

Item 1: the statement 'I am not subject to any legal constraint which would prevent me severing the joint tenancy' must not be altered or deleted, except where the statutory declaration is made by the attorney for the transferor. The statement should be modified to read: 'I [attorneys name], am not aware of any legal constraint which would prevent [transferors name] severing the joint tenancy'.

Item 2: the statement 'The remaining joint tenant(s) is alive;' must not be altered or deleted.

Item 3: the statement 'I do not hold the estate in a fiduciary capacity;' must not be altered or deleted, except where the statutory declaration is made by the attorney for the transferor. The statement should be modified to read: 'The transferor does not hold the estate in a fiduciary capacity'.

Item 4: the full name and residential address of the other joint tenant must be stated.  A Post Office or DX Box is not acceptable.  The name must be identical to the name of the other joint tenant as shown on the Torrens Title Register.

Note  A discrepancy in a name stated in Item 4 must be accounted for in the statutory declaration, e.g. 'formerly known as ...'. The name will only be changed on the Torrens Title Register by lodgment of a Change of Name form 10CN.

Item 5: the transferor/transferee must send notification of the severance in writing to every registered mortgagee, chargee and covenant chargee recorded on the certificate of title.

Staff processing information

Refer to SD52 except for the following.

Refer to Legal through the Senior Examining Officer where

  • the registered proprietors hold in a fiduciary capacity, ie by means of a Transmission Application or are protected by a Registrar General's caveat (include a copy of the dealing of by which the land was acquired); or
  • the statutory declaration has been made by an attorney for or legal representative of the transferor/transferee (see (F) above).

 For SD52

A Notice of Severance of Joint Tenancy form must be completed, dated and sent to the joint tenants stated in the statutory declaration except where the joint tenant has witnessed the execution or indicates in writing that they have received legal advice as to the severance.

Note

  • where notices are to be sent to more than one joint tenant all notices must be forwarded at the same time and allow the same period of time for reply;
  • where a discrepancy in a name exists, separate notices must be prepared and addressed under each name.

The panel relating to preparation of notices on the front of the dealing must be completed or the dealing must be marginally noted: Notices sent [date].

The transfer must be sent to the File Press.

The transfer must proceed for registration on expiry of 30 calendar days from the dating of the notice, or on receipt of the consent of joint tenants set out in the statutory declaration. Where written advice has been received from a joint tenant disputing the severance, the matter should be referred to LEG99.

Dated copies of notices sent and all consents furnished must be imaged with the dealing.

Registration procedure

Affecting land

CODE (name)    P, C or Q

           [name of transferee; include all current registered proprietors]

TENANCY   T2 etc.

Affecting a lease

RP DETAILS    click Cancel

TRANSACTION    UNDR

PRIME CODE    code of lease as shown on the Register

PRIME No.    number of lease

SUB CODE

ULTJ    (lease)

CODE (name)    P, C or Q [name of applicant; include all current lessees]

Affecting a mortgage or charge

RP DETAILS    click Cancel

TRANSACTION   MOD

PRIME CODE    code of mortgage or charge as shown on the Register

PRIME No.    number of mortgage or charge

CODE (name)     P, C or Q  [name of all current mortgagees or chargees].

DETAILS  (See [dealing numbers of previous notifications that changed mortgagee or chargee] [number of Transfer severing joint tenancy]).

Note  The severance of joint tenancy will result in the transferee holding the land as tenant in common with the other joint tenant in shares equal to the interest previously held as a joint tenant.

DELIVERY DETAILS    NOCT (where the certificate of title has not been lodged)