Joint ownership is a way for couples to buy and own a property together as either 'joint tenants' or 'tenants in common'. Each comes with its own legal consequences so it is important to make sure you know which option is best for you.
Joint Tenancy
This doesn't actually have anything to do with tenancy in the normal sense of the word. It is when a property is owned by two or more individuals known as 'co-owners'. This is the most common form of joint ownership for couples in a marriage and civil partnership but may also be appropriate for unmarried couples too.
The property is held in 'undivided shares'. This means that the shared ownership is not defined in separate parts. The property is owned as a whole by all co-owners and there is no division of shares or of particular parts of the property.
The joint owners are jointly responsible for most obligations affecting the property. They will almost always be jointly responsible for the mortgage so that the lender can pursue either or both of them if they fall behind with repayments.
When one of the joint tenants dies, the ownership will pass automatically and immediately to the surviving joint tenant(s) under the "right of survivorship" principle. The property does not form part of the deceased's estate and therefore the passing of the ownership is unaffected by any Will that may exist.
Tenancy In Common
This refers to a form of co-ownership where the owners specify what shares in the property they each own. These shares can also be passed down normally in a Will rather than transferring directly to the other co-owners like in a joint tenancy.
As with joint tenants, tenants in common have joint responsibility for the property and related obligations, including the mortgage. However, these responsibilities between the owners should be declared in a 'Declaration of Trust' or 'Trust Deed' document.
A tenancy in common can involve either equal or unequal division of shares in the property. The law will presume the division to be equal unless there is a statement (ideally contained in the Trust Deed) specifying otherwise. The property itself is not divided physically with different floors or rooms belonging to different people.
Which Should I Choose?
The main difference between joint tenancy and tenancy in common is what happens to your ownership of the property when you die. For joint tenants, ownership automatically transfers to the surviving co-owner(s). Tenants in common, on the other hand, can decide to pass on their share of ownership in the property to other people in their Will.
If you are married, in a civil partnership or in a long-term relationship and would want to pass on your property ownership to your spouse or partner anyway, joint tenancy might be best for you.
Tenancy in common was designed for people buying properties as an investment so that you can decide who receives your share of the investment when you die. It is also useful for couples buying a second property and for tax-planning arrangements. You may also choose tenancy in common if you have children from an earlier marriage that you would like to inherit your share in a property.
Our friendly and professional team can help you decide which form of joint ownership is best for you and guide you through the legal processes for buying a property together.
Contact us online or call 0370 1500 100 and speak to our experienced team.
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All Scottish cases will be handled by the Scottish law firm with which we are associated, Irwin Mitchell Scotland LLP. The law relating to conveyancing and property is different in Scotland and you will receive separate advice about what that means. Please visit our Scottish Conveyancing page for more information.
