Joint Tenancy or Tenancy in Common?
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Joint tenants and tenants in common are the two forms of UK joint ownership of land.
There are two types of joint ownership of property and land in the UK – joint tenants and tenants in common. When buying a house or property or land with joint owners, it is imperative that you choose the right form of joint ownership for you and your co joint owners.
Here we look at the differences between a joint tenancy and a tenancy in common, and highlight some of those situations in which one or other may be better for you.
What is a joint tenancy?
This is where 2 or more joint owners hold the whole of the property together and in equal shares. On the death of any one or more of the owners, those shares pass automatically to surviving joint tenants by something called the right of survivorship.
It is only when one final owner dies that a will applies (ie the will of that last remaining joint owner).
To find out more, view our ‘What is a Joint Tenancy?‘ guide.
What is a tenancy in common?
A tenancy in common is where there are joint owners, but those joint owners hold distinct shares of their own, rather that a joint share of the whole. The shares under a tenancy in common can be of any proportion – and where those shares are something other than equal they will be defined in a legal document confirming the various shares.
A tenancy in common share never passes automatically (like a joint tenancy) and instead passes via the terms of the will of a tenant in common on their death. If that person does not have a will then their share will pass via the rules of intestacy – the rules which define who gets what when we die without having made a will.
To find out more, view our ‘What is a Tenancy in Common?‘ guide.
How can I tell whether I own as joint tenant or tenant in common?
If in any doubt – ask one of our expert conveyancing solicitors! If you would like to check yourself it’s a little bit tricky to explain! There is a register against each property in the UK held at the Land Registry. In thos registers is a section called the Proprietorship Register. If you own as tenants in common, there will be a ‘restriction’ there know as the tenants in common restriction. Unfortunately, that restriction makes no mention of the words tenants in common. If there is no such restriction, by definition the law concludes that you are joint tenants.
Does the Proprietorship Register confirm percentage shares of tenants in common?
No. The restriction held in the Proprietorship Register does not include confirmation of the percentage shares held by the tenant in common owners. This will be defined in a document normally prepared by their solicitor. There is no need for that document to be held at the Land Registry.
Can I put my share of my house into trust?
Generally, if this is something you wish to do you would expect to own as tenants in common (NOT joint tenants).
Can I gift my share of a joint tenancy in my will?
No, you can not gift your share of a joint tenancy on your death via your will (unless you are the sole surviving owner). If you wish to gift a share of property to someone other than a co-owner you are likely to be best suited to holding the joint property as tenants in common.
Can I hold property as joint tenants in unequal shares?
A joint tenancy will always be deemed to be equal shares. If you wish to hold unequal shares you will likely need a tenancy in common.
What is the right of survivorship?
The right of survivorship is the legal principle which dictates that the shares of joint tenant owners passes automatically to the surviving joint owners on the death of others. This overrides the terms of any will and the rules of intestacy. The only point at which a will applies to a joint tenancy is on the death of the sole surviving owner. At this point, the right of survivorship can not (by definition) apply as there are no surviving joint owners. And so, the will of the final owner will decide who then gets the property.
What if 2 joint tenants die together?
If 2 joint tenants die together, the younger is deemed to have survived. So, the right of survivorship dictates that the younger owner inherits the whole property which will then pass via the terms of their will.
This is particularly important when making wills, and you should speak to one of expert wills solicitors to help with this. People making wills are often inclined to make ‘backstop’ provisions for just their own side of the family (or friends). The example given here highlights where it is useful to make what are known as mirror wills to cover off this eventuality. In mirror wills, the backstop provisions are designed to deal with a situation where partners (usually) die together, and to ensure that both sides of the families get a share of the combined estates, even if joint tenant assets have ended up in just one will by the right of survivorship.
When should I choose a tenancy in common?
You should generally choose a tenancy in common if you wish to gift your share of the property to someone other than your co-owner, eg another person or perhaps even a trust.
What shares you hold is likely to influence whether you choose a Joint tenancy or a tenancy in common.
When should I choose a joint tenancy?
You should generally choose a joint tenancy if you want to hold in equal shares AND you would want the surviving owners to inherit your share if you died.
Do I still need to make a will even if I am joint tenants?
Yes! We should all have a will in any event. But, as explained above, the right of survivorship only applies up to the point where there is one survivor at which point they need a will to deal with the remaining whole share of the property.
Will my conveyancing quote include advice on Joint Ownership?
Yes, advising joint owners on joint tenancy v tenancy in common is usually part of your conveyancing quote.
Got more questions about joint ownership?
If there are questions you have around joint ownership that this or any of our other content does not cover please do reach out to our expert team of wills and probate solicitors. You can email us at property@qlaw.co.uk or call at 03300 020 365.
Conveyancing Solicitors
If you are about to buy a house, and you are looking for a conveyancer, QLAW can help! Our instant Online Conveyancing Quote will give you a full breakdown of your home moving costs. The fee calculator will list our conveyancing fees, plus disbursements (Stamp Duty, Land Registry fees, search fees, and so on).
Do tenants-in-common have to live together in the property?
And what is the minimum percentage that they can own?
Thanks for a great question Dan. No, there is no requirement for ‘tenants in common’ to reside in the property. It’s simply a definition of percentage shares owned (and might therefore for example apply to a property that is an investment property or even non residential). And, there is no minimum percentage requirement. Great questions and if it’s OK with you I’ll add them to our FAQs section on this subject on our site. Cheers Dan – Team Qlaw.
I’m living on my grandfather’s land have been 12 yes. There is a warranty deed w survivorship and joint tendency w his wife he divorced . How do I get. To be owner of land
Thanks for your comment Dmb. Sounds like a tricky query and it might be worth speaking directly to one of our property solicitors or estate planning solicitors who could perhaps chat it through. If you’d like to speak to one of our solicitors about your query do please email us on info@QLAW.co.uk. Thanks again for reaching out – really kind of you. Team QLAW!
Many thanks for your answers – I have no problem with you adding them to your FAQs.
If a widowed parent owns a £500k house and becomes tenants-in-common with a child, say in the ratio 1% to 99%
a) Roughly how much does change in ownership cost and is that the only cost involved?
b) Would there be any inheritance tax to pay when the parent dies?
Hey Dan. IHT depends on what else there is in the estate for tax purposes – and that’s probs beyond the scope of a short post! Gifting the family home during lifetime to a child is an unusual step because of the risk to the surviving parent. It can be done but the parent is likely to be given a stark warning by any lawyer acting in the gifting process. Does that help? Thanks so much for reaching out. Best wishes – Team Qlaw!
What if we hold unequal shares investing in our property but want to ensure survivorship on death?
Thanks Trevor – great question! Simple answer is you need to make a will. Joint tenants can ONLY be equal shares. So, by definition you will have to be tenants in common (if not already) – AND you must have a will. We have tonnes of content about wills and can help with making your will remotely – all done online from the comfort of your own home! Thanks again – TEAM QLAW!
This was really useful information on the tenants in common and joint tenants situation, including what is/is not on the Land Registry record for a property. Thank you.
Jane – that’s SO kind of you to leave such lovely feedback. We’re so glad you found the article helpful. A big thank you for taking the time to comment. Team QLAW!
Great information thank you! This is a really helpful summary. I’m thinking of contributing 25% towards the cost of a house for my widowed mum and holding a 25% share as a tenant in common, with my mum owning the remaining 75%, and she will live in the house as her primary residence. Is her share exempt from IHT on her passing if the value of the home is less than £1 million?
My mother and I bought a property together which is on the land registry document as joint owners. We also have a tenants in common agreement but we, for some reason, didn’t register it with the Land Registry. My mother recently passed away and in her will she has named myself and my brother both executors and beneficiaries. It has always been agreed that her half of the property would be shared equally between my brother and I, but I am now confused as to where we stand legally. Is it survivorship or still tenants in common?
Hi Sam and thanks so much for reaching out. I’m terribly sorry to hear of the passing of your mother. So, the simple answer is that the right of survivorship takes priority (meaning technically that you receive the property). HOWEVER, there are ways of undoing this by agreement between you and your brother. And, perhaps an argument too that whilst the legal title passed to you, there was an intention to benefit your brother in ‘equity’. Critically as I say – it can be put right. If you’d like to chat it through further do message me directly at nq@qlaw.co.uk. Hope that helps and thanks again for your query. Neil Q (CEO)
My late husband and I purchased a rental property as tenants in common. He passed away in 2015 without leaving a will. I had intended to transfer the complete property to my daughter. However as I have now discovered it was purchased as tenants in common, can I pass on his 50% share directly to her without paying CGT and would this count as a gift for IHT purposes. Or should I continue with my plans to transfer to my sole name and then to my daughter. Everything else was jointly owned and has passed to me by probate.
Hi Val and thanks so much for your question. I am so sorry you contact us regarding the passing of your late husband. Some interesting points in there. I am sure you are by now aware of the rules of intestacy, but if not, check out our article on that. So, first thing to think about is what is your entitlement under the rules of intestacy? This will not include any property held jointly (eg bank accounts) or houses held as joint tenants. There is a general rule of thumb that gifting half of a property to non occupiers is a dangerous thing as others may then have a right to force a sale (in very broad terms). This is generally NOT so critical for rental or second homes (obviously) as it is for the place you call home! As regards IHT, I am sure you are aware of the rules for PETs (potentially exempt transfers), but either way, check out our article on inheritance tax exemptions and reliefs. In short, if you are in good health, and survive 7 years after making a gift, IHT should fall away. Lastly, as regards CGT this will of course depend on what the answers are to the previous questions (in part at least). Lastly Val, if in doubt – PLEASE TAKE INDEPENDENT LEGAL ADVICE! Estate planning of this sort is frought with problems. The thoughts shared here are of a generic nature and should not be taken as specific advice! Ouch – we sound like lawyers don’t we?! Do get in touch directly Val if you would like bespoke help. And meantime – thank you once again for reaching out to QLAW!
My Father gifted me 50% his house over 7 years ago (So not subject to IHT, and Primary Residence) however he did it as Joint Tenants. Now because he has several properties that will lift him above the IHT threshold. When the time comes (hopefully not for a 100years) his half of the house would pass to me, but would his half be included as part of IHT and need to be included in Probate? or would it be excluded as the property is in joint tenants?
Currently he does have a will in place placing all properties in trust.
Hi Ady, great question.
As a general rule of thumb, assets held jointly (including land as joint tenants) will still be assessable despite passing to the surviving owner without needing probate. So, they will pass because of the ‘right of survivorship’ and irrespective of the terms of any will/probate. BUT, the taxman once his slice! So, anything owned (outright or in part) by the deceased (your father as say in many years) will be assessed as taxable for IHT – irrespective of where it ends up going, and how it gets there. That is an overly simplified generic look at the subject, and if in any doubt at all your father should seek specialist estate planning advice (something we can of course help with at QLAW. READ ABOUT IHT HERE
Thanks so much for reaching out. Best wishes from all at Team QLAW!