Joint Tenancy/Tenants in Common

One significant issue relating to ownership of property which occurs on relationship breakdown is the question of whether or not the property is registered as a joint tenancy or as a tenancy in common. Joint tenancy and tenancy in common are two different ways for people to hold property.

If the property is held as a joint tenancy then all tenants (owners) will own the entire property, and each will hold it on trust for the other tenants.

If the property is held as a tenancy in common then each tenant will have distinct shares, usually as a 50-50 split if there are two tenants. It is, of course, possible to have more than two tenants, or to have an equal split by reason of the parties entering into a trust deed reflecting their intended share of ownership at the time of purchase, or subsequently.

The main impact of how the property is held is the question of what happens if one of the tenants dies. If the property is held as a joint tenancy then, as both own the entire property, and hold it on trust for the other, the remaining tenants will automatically receive the deceased tenant's share, regardless of any will, and the property does not go into the deceased's estate. Thus if a husband and wife jointly own property as joint tenants, and one dies, the property just stays in the ownership of the survivor.

If the property is held as tenancy in common then the deceased parties share will form part of his estate, and will be dealt with as per the instructions in his will.

Obviously if you and your partner/spouse own the property as joint tenants, and you then separate, you may wish to consider “severing the tenancy” to prevent your partner/spouse from automatically becoming the outright owner of the property in the event that you die before financial matters following on from separation have been determined, (either through negotiation or applications to the court dealing with the financial situation).

It is a relatively simple exercise to transfer a joint tenancy into a tenancy in common, and involves the service of a written notice which needs to be served by one owner of the property on the other(s).Once served, the notice has the effect of severing the joint tenancy and there is nothing that the other owner can do to prevent this.

Once the tenancy has been severed then the land Registry should be notified in writing of the severance.

This then means that you can make provision for what should happen to your share of the property in the event that you should die before the question of what should happen to the house has been resolved.