Guide

Property in England and Wales can be held by joint owners either as joint tenants or as tenants in common. This is normally recorded in the transfer documents lodged with the Land Registry when the property is bought.  A Deed of trust may also be entered into, either at the same time or subsequently.

If the papers do not say otherwise the property will automatically be held as joint tenants in equal shares. A joint tenancy can be converted at a later date into a tenancy in common by writing to the other owners stating the property will now be held as tenants in common.  You cannot convert a tenancy in common to a joint tenancy in the same way.

The most important difference between the two ways of owning the land is that land held by joint tenants automatically passes to the surviving owner(s) when any of the owners dies.  This is automatic and cannot be overridden by any will, because the property is regarded as having passed to the co-owner(s) at the moment of death and never forms part of the deceased’s estate.

In a husband and wife situation, this may be exactly what the parties want.  However, where you contribute in unequal shares to the property or you are splitting up this may be the last thing that is intended. If this is not the required result, then the joint tenancy should be severed or the property purchased as tenants in common.

The property will be held in equal shares unless a contrary intention appears. If you contributed to the purchase price in equal shares then you may well wish to own the property in equal shares. However, you are entitled to agree that the property should be held in unequal shares, whether or not one of you contributed much more to the purchase price than the other. If so this needs to be stated in the transfer deed or a declaration of trust needs to be entered into.

The courts have made it quite clear that any property issues will normally be decided based on the paperwork.  If this is not done correctly contrary evidence is unlikely to be admitted to show what the real intention was. If the title document says either expressly or by implication that the property is held in equal shares the courts will only exceptionally interfere to alter this.

These are important considerations.  If you do not understand exactly what this means or are unsure as to what your position is and what your best course of action is, please call us for free initial advice on (01525) 373322.