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).

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.

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.

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.

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Contact

For advice on any of the issues raised about joint ownership, please reach out to our expert team of property solicitors. You can email us at property@qlaw.co.uk or call us on 03300 020 365.