Recording the death of a resident who is recorded as a joint tenant on a registered lease

About this article

This article relates to residents in leasehold villages where one of multiple residents of an accomodation unit, who are recorded as joint tenants on a registered lease, dies.

This article explains the following –

• the cost benefit for a surviving resident to record the death of a deceased lessee joint tenant, themselves; and
• explain the procedure to record, in the Queensland Titles Registry (also known as the Titles Office), the death of a deceased resident.

Background

In the case of a leasehold village, each resident’s right to reside under their residence contract to occupy an accommodation unit is secured by, among other things, a lease registered in the Titles Registry.  Co-lessees are usually recorded as joint tenants on the lease registered in the Titles Registry.

Terminology

Resident under a residence contract

Right to reside – is an exclusive right given, personally and separately under a residence contract, to a person to occupy an accommodation unit for their lifetime. The right held by each resident terminates on the death of that resident.(For more information, refer to article – Right to reside)

A person who has a right to reside under a residence contract is referred to as a resident.

Joint tenant under a lease

Meanwhile under a lease, which secures a right to reside for the resident, the same person is referred to as a lessee.

Where there are two or more lessees of an accommodation unit, the lessees will always be entered as ‘joint tenants’ on the lease document to be recorded in the Titles Registry on the title to village land.  This means that neither tenant can bequeath, on their death, the interest they formally held. Instead the interest held by the deceased is, automatically by law, vested in the surviving joint tenant.

Notwithstanding the automatic vesting, the death of a lessee must still be recorded in the Titles Registry, now or in the future, before the accommodation unit may be dealt with under a resale or the death of the surviving joint tenant.

The will of the deceased has no effect on the recording of a joint resident’s death.  Further, the personal representative (executor) nor any beneficiary under the will, in their respective testamentary capacities, are not involved.  It is the survivor who must make the application to record the death of the other resident.

Costs advantages

As stated above, it is not compulsory that the death be recorded soon after death, but there are costs advantages to do so, particularly if the work is undertaken by the surviving resident.

If the work is not completed by the surviving tenant when they are able, it will be done later by the scheme operator’s solicitor when the survivor moves out or dies.  The costs charged for professional fees of the scheme operators solicitors will be significantly more expensive than if the work was done by the survivor.  These costs will be deducted from the exit entitlement paid to the resident when they leave, or to their estate.

The surviving resident may decide for their solicitor to conduct the work soon after the death, but professional fees will be payable in addition to Government charges.

Where the surviving resident decides to undertake the work, a family member or another trusted person may help them.  In this case, the costs will be limited to Government charges –

• to obtain a death certificate, if you do not have one ($49.50 July 2019)
• to lodge the documentation in the Titles Registry ($36 July 2019).

It is relatively simple for the surviving resident to undertake the work.

What needs to be done

Right to reside

In respect to the right to reside formerly held by the deceased, nothing needs to be done

Recording the death of a lessee in the Titles Registry

If the survivor chooses to undertake the work, they need to –

• source a Titles Registry Form 4 – Request to Record Death
• correctly complete the form (you will need a current title search for village land, refer to article – Access to operational documents by a resident or prospective resident)
• ensure the form is properly signed* and witnessed by an appropriately qualified witness
• source properly certified evidence of death of the deceased
• lodge the completed form and certified evidence in the Titles Registry
• pay the relevant lodgement fee.

*Note – only the surviving resident or an appropriately authorised attorney may sign the request as the applicant.

The Titles Registry website has more information to assist you with the above procedures.