Joint Tenants or Tenants in Common

- What does it mean and why does it matter?

In law there are two ways to jointly own property: It can either be held as “Joint Tenants” or as “Tenants in Common”.

What does this mean? Briefly…Joint Tenants

• Have equal rights to the whole property.
• The property automatically passes to the other owner(s) on the death of one of the owners.

Tenants in Common

• Have different shares of the property as agreed - often equal half shares
• The property does not automatically pass to the other owner(s) on the death of one of the owners. The deceased’s share will pass according to the provisions in their Will (or under the rules of intestacy if they have not made a Will)

A Joint tenancy is a more common form of ownership between married couples. On the death of one party, the property passes automatically to the surviving spouse.

A tenancy in common can be used for estate planning purposes, for instance, where you wish to pass your share to your children. One aspect of holding property in either of the alternative ways, is the difference it might make where a couple are separating (whether they are married/in a civil partnership or not). If they are joint tenants, they perhaps do not wish for their soon-to-be-ex, to automatically inherit the property should they die before resolving any financial issues between them. Separating couples should seek professional legal advice on the subject. It is open to either party to “sever the joint tenancy” if they wish – this is usually done by one of them serving Notice on the other and the Notice is then registered with the Land Registry. For married couples, severing the joint tenancy may be contemplated alongside their making Wills and by making a “Protective Property Trust Will”. The half share in the property belonging to the first to die can then be left, in trust, to the children but still giving the survivor full rights to reside in the whole of the property and, indeed, giving the survivor the right to move to an alternative property using the whole of the value of the house.

These types of Will protect the half share of the first to die from being “lost” following a subsequent re-marriage or against possible future residential care fees.