When one or more people own a property, a trust automatically arises.
The legal title can only be held as joint tenants, but the beneficial interest can be held as one of two forms (Joint Tenants and Tenants in Common).
During the conveyancing process, purchasers will be advised as to both forms, and it is highly important to understand the key differences between the two prior to completion and the implications they could have in the future.
Below is a brief summary of each and the key differences between the two:
Joint Tenancy
If a property is held as joint tenants the main point to be aware of is that upon death of one of the owners, their share will automatically pass to the surviving owner. This is known as the survivorship rule.
The survivorship rule comes into effect automatically upon death regardless of whether that person holds a Will or not. This means that you are unable to leave interest in a property that is held in a joint tenancy by a Will.
Joint tenancy tends to be favoured by married couples as a joint tenancy is always held in equal shares regardless of any variations in financial contributions towards the property. If a property is held as joint tenants and this is no longer intended, it is possible for the joint tenancy to be severed.
This is usually done by serving a notice of severance on the other joint owners and an application would be made to HM Land Registry to enter a restriction on the title for the property to be held as tenants in common rather than joint tenants.
Tenants in Common
Under this form of joint ownership, each owner holds shares in the property which can either be reflected as equal or unequal contributions. The assumption is contributions are joint and equal unless stated otherwise.
The survivorship rule does not apply to tenants in common therefore a person who holds interest in a property as tenants in common can dispose of the same in a Will (if they have one) or intestacy rules (if they do not have a Will).
We would often advise unmarried couples, parents and their children or couples who have children from previous relationships to hold a property this way. If one party is to contribute more towards the purchase price then the other then it is important to state the declaration of the shares and that the property is intended to be owned in the relevant portions.
This is often necessary where either or both parties are bringing in funds towards the purchase from a previous sale and/or savings. If a tenancy in common in unequal contributions is the preferred form a Declaration of Trust would be prepared highlighting the share from each party.
The preferred form of joint ownership must be established prior to the post-completion stage to ensure the signed transfer is correct prior to lodging the registration at HM Land Registry.
We would be happy to advise on any further information required with regards to joint ownership. Our Wills and Probate Team would also be happy to assist with advising and preparing any Wills/Trust Deeds required. Please do not hesitate to contact the team to provide further details and obtain a quote.
Further reading
Purchases – Oakwood Property Solicitors
WHAT TO DO NEXT
To make a start on the next step in your property journey, get in touch today to book a consultation with a member of our team. Call us on 0113 218 5727 to find out how we can help you.
