Transmission Application v Survivorship Application
When someone dies leaving real property, the manner of holding of the property needs to be confirmed to determine the appropriate way of dealing with the property. There are several types of property ownership. The common property ownership types include:-
1. Property owned as sole ownership;
2. Property owned as joint proprietorship; and
3. Property owned as tenants in common, where each proprietor owns a distinct share of a property.
When property ownership of a deceased person is any of the above, an application must be lodged with the Land Titles Office in order to deal with the deceased person’s property, or their respective share of a property (when the property ownership is tenants in common). There are two different applications that need to be considered which are:-
4. An Application by Personal Legal Representative (also known as a Transmission Application); or
5. An Application by Surviving Proprietor (also known as a Survivorship Application).
The manner of holding of the property will determine which of the above applications will need to be lodged with the Land Titles Office.
Transmission Application
Where a deceased person owned property as sole proprietor or they owned a share of a property as tenants in common with other proprietors, a Transmission Application must be lodged with the Land Titles Office. The person/s authorised to lodge a Transmission Application is the Executor/s of the deceased person’s Will, or the Administrator/s when there is no Will. Neither the Executor/s or Administrator/s have authority to lodge a Transmission Application until a Grant of Representation appointing them to administer the deceased person’s estate is issued by the Supreme Court of Victoria.
Once a Transmission Application is lodged with the Land Titles Office, the property, or the deceased person’s respective share of a property, will be registered in the name/s of the Executor/s or Administrator/s as the legal personal representative/s of the deceased person’s estate. This will provide them with authority to deal and transact with the property, or share of the property, but it does not provide them with beneficial ownership. The Executor/s or Administrator/s then have the authority to transfer the property as per the deceased’s Will, or the laws of intestacy, or sell it, as the case may be. Until a Transmission Application is lodged and the property, or share, is registered in the name/s of the legal personal representative/s, no one has authority to deal or transact with the property.
In situations where there is a mortgage registered on the Certificate of Title and a Transmission Application must be lodged, the legal personal representative/s of the deceased’s estate needs to obtain consent from the mortgagee to make the Certificate of Title available to lodge the Transmission Application. The mortgage will not be discharged from the property until any loan is repaid by the deceased’s estate. Of course, if the mortgage has already been repaid but never discharged, the discharge of mortgage can be registered simultaneously with the Transmission Application.
Survivorship Application
Where a deceased person owned property in joint proprietorship with another registered proprietor, a Survivorship Application must be lodged with the Land Titles Office. Unlike a Transmission Application, it does not matter if the deceased person left a Will or not, the only person authorised to lodge a Survivorship Application is the surviving joint proprietor registered on the Certificate of Title. Property that is owned jointly does not form part of a deceased person’s estate. Property that is owned jointly will automatically pass to the surviving joint owner by the right of survivorship. Therefore, a Survivorship Application can be lodged by the surviving joint proprietor at any time without the need to obtain a Grant of Representation from the Supreme Court of Victoria.
Once a Survivorship Application is lodged with the Land Titles Office, the property will be transferred from the joint names of the deceased and the surviving joint proprietor/s, into the surviving proprietors’ name/s. The surviving proprietor/s will be registered on the Certificate of Title as the proprietor/s. Notices to the relevant council, water and owners corporation (if applicable) authorities should be done as soon as the application is lodged to notify them of the change of ownership.
Now, similar to a Transmission Application, where there is a mortgage registered on the Certificate of Title and a Survivorship Application is needing to be lodged, the surviving proprietor/s will need to obtain consent from the mortgagee to make the Certificate of Title available to lodge the Survivorship Application. The difference is that with a Survivorship Application, it may trigger a re-assessment of the loan against the property and the mortgagee may need to establish the surviving proprietor/s’ ability to service the loan. If the loan has been repaid, but the mortgage never discharged, a discharge of mortgage can be registered simultaneously with the Survivorship Application.
Both applications are lodged online via an online conveyancing platform called PEXA Exchange and fees associated with PEXA and Land Registry will be payable upon lodgement of either application. If there is a mortgage, there may also be a mortgagee’s fee for the consent and production of the Certificate of Title.
If you require any assistance with lodging a Survivorship Application or a Transmission Application, please contact our office on 9707 1155 or at admin@wslegal.com.au.