By Marta Rayner, Solicitor
As a solicitor specialising in property law in England and Wales, I am often asked which form of co-ownership is most suitable. In practice, many people are unaware that the way a property is owned can have significant legal consequences, particularly in the event of the death of one owner, the breakdown of a relationship, or for estate planning purposes. Under the law of England and Wales, a property owned jointly by two or more people can be held in one of two ways: Joint Tenants and Tenants in Common.
In both cases, the owners’ names appear on the title register maintained by the Land Registry. However, the legal consequences of these forms of ownership are fundamentally different.
Joint Tenants
If you and your partner own a property as Joint Tenants, the law assumes, unless otherwise specified in a legally binding document, that you each have an equal interest in the property.
The key feature of this form of ownership is the right of survivorship. This means that, upon the death of one co-owner, their interest in the property automatically passes to the surviving owner, regardless of the terms of the deceased’s Will.
This is the most common form of ownership for:
- Married couples
- Civil partners
In practice, following the death of one owner, it is usually sufficient to submit the death certificate to the Land Registry for the property to be registered in the sole name of the surviving owner.
It is important to note that a Will cannot override the right of survivorship. Even if you leave your share of the property to someone else in your Will, that gift will not take effect.
Tenants in Common
Under a Tenants in Common arrangement, each owner holds a distinct share in the property. If no specific shares have been agreed, the shares are presumed to be equal; however, it is common for ownership interests to be expressed as percentages.
Unlike Joint Tenants:
- there is no automatic transfer of ownership upon death,
- the deceased owner’s share passes in accordance with the terms of their Will or, where -there is no Will, under the rules of intestacy,
This form of ownership is particularly important where:
- the parties have made unequal financial contributions towards the property,
- the owners are not married,
- estate planning considerations are a priority.
Where one party contributes a larger sum towards the purchase of the property or pays a greater proportion of the mortgage, it is essential to put a Declaration of Trust in place to protect that contribution. Failure to do so may lead to significant legal disputes in the future.
When is it advisable to choose Tenants in Common?
The most common situations in which I recommend this form of ownership include:
- Business Partners
Each partner wishes their share of the property to pass to their family or chosen beneficiaries, rather than automatically to the other co-owner.
- Married Couples with Children from Previous Relationships
This arrangement helps protect the interests of the children by ensuring that a parent’s share passes to them, rather than automatically to the surviving spouse.
- Care Home Fees Planning
Leaving a share of the property by way of a Will or trust may help preserve part of the estate and form part of a broader asset protection strategy.
- Unmarried Couples
This structure helps protect each party’s interest in the property in the event of separation or the death of one partner.
Comprehensive Legal Support – McHale & Co Solicitors
At McHale & Co Solicitors, we provide comprehensive advice in relation to:
- UK property law;
- Changing the form of co-ownership (severance of a joint tenancy);
- Preparing Declarations of Trust;
- Wills;
- Lasting Powers of Attorney;
- Estate planning and asset protection.
Every situation is unique, and the most appropriate form of property ownership should always be tailored to your individual personal, family, and financial circumstances.
Contact our team on 0161 928 3848 to discuss your circumstances and ensure that you receive comprehensive legal protection now and in the future.