There are two ways in which joint owners might own a property; either as beneficial joint tenants or as tenants in common.
Those owning a property as beneficial joint tenants will own the property in equal shares and on the death of one, their share will automatically pass to the survivor regardless of what it is in their Will. Those owning property as tenants in common can choose to own different proportions e.g. 60% / 40% or 70% / 30% and can specify in their Will what will happen to their share on death.
Many joint owners find that they own their property as beneficial joint tenants without recalling ever being given a choice. Indeed, historically it tended to be the default position in the case of married couples.
Does it matter?
For some, typically couples, the fact that they own as beneficial joint tenants may reflect what they want. If they have each contributed the same amount to the property, or perhaps to the marriage, it may seem just that they do own it 50/50, or ‘straight down the middle’ as it were. They may want everything they own, or at least their most valuable asset to pass to their other half.
However, this isn’t always the case.
They may want the ownership of the property to reflect their unequal contributions if this be the case.
One owner may have contributed significantly more to the deposit at the outset when buying the property or have paid more of the mortgage.
One owner may decide that they want their half of the property to go directly to a child; this is often the case in ‘blended families’ with each bringing children of their own to the relationship. If they decide to do this, it needn’t mean that on their death, the surviving owner has to leave the property so it can be sold. A life interest trust can be set up enabling the surviving owner to live in it until their death- this is known as the trust period. When they die and the trust period ends, the property or its proceeds will pass in accordance with each owner’s Will, or if they haven’t got one, by the rules of intestacy.
What can they do?
Beneficial joint tenants needn’t stay that way. It is possible to sever a joint tenancy and become tenants in common, and it is a relatively straightforward process.
If both owners are content to sever the joint tenancy, they will sign what is known as a Notice of Severance which will be sent to the Land Registry, who will then register a restriction on the title of the property to reflect this.
If only one owner wants to sever the joint tenancy for example because of a relationship breakdown, the owner who does not agree may refuse to sign the Notice of Severance. However, the Land Registry may still register the restriction provided it can be shown that the Notice of Severance was served on the owner that has refused to sign it.
If you have any questions about severing a joint tenancy, please contact the team on 01206 577 676 or email [email protected].