When 2 or more people own or purchase a property together, they will typically hold the property either as Joint Tenants or as Tenants in Common. One of the questions which often arises when we assist our clients with property transactions, is the format in which a co-owned property is held: as Joint Tenants or as Tenants in Common. Each form of ownership has significant legal implications which are distinctly different from the other. It is therefore very important to know for certain that a co-owned property is held in the appropriate format by the proprietors (owners).
Joint Tenants
Where proprietors hold a property as joint tenants, this means that they are all equally entitled to the whole of the property, and do not have individual shares. When a sale of the property has completed, each joint tenant is entitled to an equal share of the proceeds.
A key feature of Joint tenancy is the right of survivorship, and any changes to the ownership of the property upon the demise of one or more of the proprietors. For instance, if a property is held by 3 people as joint tenants, and one of them dies, the deceased’s interest is automatically passed to the 2 remaining Joint tenants. Upon the demise of another proprietor, the last remaining joint tenant will become the sole owner of the property.
Tenants in Common
Unlike Joint Tenants, where 2 or more proprietors hold a property as Tenants in common, this means that each of them owns a separate and distinct share of the property. The right of survivorship is not a feature, and as such, if one of the owners is deceased, their share of the property does not automatically pass to the others, instead, it is dealt with in accordance with their Will or intestacy if they die without a Will.
Additionally, tenants in common can either hold equal or unequal shares in the property. In other words, each of the proprietors could own equal shares of 50%, where there are only 2 parties, or 25% each where there are 4. Each party owning an equal share of the property. Tenants in Common in unequal shares follows the same principles as Tenants in Common in equal shares, however, as the title suggests, the percentage of the property owned by each party may differ slightly or significantly. It is not uncommon, for instance, for a property in this form of ownership to be held in a 70:30% split, or indeed a 20:80%. To ensure that the rights of all the proprietors are adequately protected, we always advise our clients to ensure that they execute a Declaration of Trust which clearly defines how the property is held between them.
Joint Tenants v Tenants in Common
Deciding on the appropriate type of ownership when buying a property with others may sometimes seem confusing. However, the pertinent facts
to bear in mind in making that decision should be how you want your share in the property to be treated; either on the sale of the property, or in the case of one of the proprietor’s demise. You should generally consider Tenants in Common if you wish to gift your share of the property to someone other than the people/person you own the property with. It would also be more fitting if you hold the property in unequal shares.
If, on the other hand, the property is held in equal shares, and it is your wish that the surviving owners inherit your share, then Joint Tenancy would be the right form of ownership.
Even where it is determined that the property is held in the right manner, it is our strong recommendation to all our clients to ensure that their Will is up to date at all times. While the right of survivorship may not apply to Tenants in Common, in the absence of a Will, your share of the property would be dealt with under Intestacy rules. There are also other benefits (such as Life Interest Trust) and legal implications associated with each form of joint ownership. Please do not hesitate to contact us for further information or if you are uncertain about how a property you own with others is currently held, and/or whether the form of ownership aligns with your wishes. Our Private Client Team will also be happy to assist with any enquiries relating to your Will.
