Co-Owned Property Sale: Guidelines

Real estate co-ownership in NSW is registered in one of two ways. Under Joint Tenancy, both owners hold equal shares, and the right of survivorship applies. This means that if one owner dies, their share transfers automatically to the surviving owner regardless of will provisions, commonly used by married couples.

Under Tenancy in Common, owners can hold unequal shares (such as 70/30 or 50/50), and there is no right of survivorship. Each owner can sell, transfer, or bequeath their share in their will. Separating joint tenants typically convert their ownership to tenants in common (via a unilateral severance form filed with the LRS) to protect their individual estate planning.

When co-owners disagree on selling a property (for example, one partner wants to sell while the other wants to retain the home), the law provides a pathway. Under Section 66G of the Conveyancing Act 1919 (NSW), a co-owner can apply to the Supreme Court of NSW to appoint trustees to execute the sale.

The court almost always grants the application unless a valid agreement (like a BFA) prevents it. The appointed trustees (usually accountants or solicitors) take control of the property, prepare it for sale, list it publicly (often at auction), and distribute the proceeds. However, this process is highly expensive, consuming $15,000 to $35,000 in court and trustee commissions, which are deducted directly from the property equity.

A voluntary off-market sale is far more cost-effective than a Section 66G application. Selling directly to direct buyers like ROAME Australia secures a contract at a verified market price without trustee commissions or public marketing budgets.

The contract contains transparent terms and a fixed settlement date, which helps legal representatives calculate mortgage pay-offs and distribute proceeds. Bypassing public listing processes keeps the transaction professional and preserves maximum equity.

When selling a co-owned property during a dispute, both partners must be represented by separate conveyancers or solicitors. A single conveyancer cannot act for both parties if a conflict of interest exists. Independent solicitors ensure that special contract conditions protect both owners' interests and coordinate mortgage discharges and fund payouts.

At contract exchange, the buyer pays a deposit (typically 10% of the purchase price). Under NSW conveyancing rules, this deposit must be held in the selling solicitor's or agency's trust account.

Release of deposit monies prior to settlement requires a signed Section 27 agreement. If co-owners are in dispute, the deposit remains locked in trust until settlement, protecting both parties.

Transactions involving deceased estates, separating spouses, or financial distress must adhere to strict consumer credit and succession laws.

For inherited properties, the Succession Act 2006 (NSW) requires executors to act in the best interests of all beneficiaries, making independent registered API valuations essential to prove market price.

For separating couples, Section 79 of the Family Law Act 1975 (Cth) governs the division of assets, and property transfers can be executed exempt of stamp duty under Section 68 of the Duties Act 1997 (NSW).

For stress sales, the National Credit Code requires lenders to assess hardship requests in good faith before taking court actions, giving borrowers time to organize voluntary private treaty sales.