Thompson Smith and Puxon Residential Property solicitor, Laura Finnigan, discusses the different ways of owning a property.
There are basically two ways of owning a property in joint names, as either, Joint Tenants or Tenants in Common.
The main consequences of a Joint Tenancy are
- that the survivor of two owners will automatically become the sole owner of the whole property, whatever any Will of the deceased owner might say
- that the ownership shares are not declared, with the presumption being that it was intended that the value of the property be shared equally
The alternative way of owning the property, Tenants in Common, is more common in unmarried relationships and in second marriages or civil partnerships. The main consequences are:
- that each owner can leave his or her share in the property by Will to somebody other than the other joint owner
- that the parties can declare the shares in which they own the property (e.g. 75% to A, 25% to B). This may be particularly useful where there is unequal contribution to the cost of purchasing the property. The absence of a precise declaration as to the shares of ownership may increase the risk of expensive litigation if the parties are unable to agree how the equity in the property should be shared
If you are purchasing a property as Tenants in Common it may be advisable to put in place a Declaration of Trust. This is a document which confirms the proportions in which a property is owned.
Changing Mode of Ownership: In a joint tenancy, either party can, without the other’s co-operation, convert the Joint Tenancy into a Tenancy in Common. This is known as severing the Joint Tenancy. The other party has to be informed of what is happening, but his or her permission is not required. The severance of the joint tenancy is then noted on the Title Deeds or at the Land Registry. It would be important to combine the severing of a joint tenancy with the making of a Will, so as to ensure that the share of the property went to the person to whom the party intended it to go, particularly if the proposed beneficiary is not the next of kin, as, if no Will is made, then the law of intestacy will decide what happens to the deceased’s estate and could decide that the beneficiary should be somebody who would not have been the chosen beneficiary of the deceased had he or she made a Will.
Mortgage: Please note that whatever form of co-ownership is chosen, you will each be liable to the mortgage lender for the full amount outstanding under the mortgage.
For general advice in relation to any residential property matters please contact Laura Finnigan at Thompson Smith and Puxon on 01206 217 020 or by email at firstname.lastname@example.org.