Co-ownership

If you choose to own property jointly with someone else (whether you live in it or not), then there are two methods of ownership open to you. The treatment of the property on death is very different depending on how the property is held during your lifetime, so it’s essential to ensure that you are holding it in the right way.

Property can be held as:

• Joint Tenants
• Tenants in Common

Co-ownership – Joint Tenants

The first method of ownership is joint tenants. This is where the co-owners effectively all own the whole property, rather than having distinct shares in it, say 50:50. The property will pass automatically to the surviving co-owner(s) on death, regardless of any provision in your Wills.

The automatic transfer of the property will take place under the rules of survivorship, and can be quite useful between married couples or civil partners, unless they intended for something else to happen – for example, if there are children from an earlier marriage and you would prefer your share of the property to be protected for them, and not to pass to your surviving spouse or civil partner.

Holding a property as joint tenants can also have implications if you hold it with a loved one and the relationship breaks down. As there are no distinct shares of ownership in joint tenancy, it will be assumed that you owned the property equally, regardless of any difference in the contributions that you may have made to the purchase price.

Co-ownership – Tenants In Common

The second method of ownership is tenants in common. This is where the co-owners own distinct shares in a property which will then pass into their own estates on death and under the terms of their own Will or the Intestacy Rules (if they don’t have a valid Will).

This form of ownership can be particularly useful where parties have made unequal financial contributions and/or where parties wish to ensure that the property passed into their own estate on death, and not to the surviving co-owner(s) – this is especially relevant where there are children from earlier relationships. The financial contributions do not have to be unequal as it is still quite possible to own a property 50:50 with someone as tenants in common too.

It is also possible to revise the shares of ownership in the future, for example if one party pays towards significant home improvements or if one pays more towards the mortgage. Though, accurate records would need to be maintained.

Where parties do wish to hold unequal shares in a property it is important to record this by way of a Declaration of Trust, so that the parties’ intentions as to how the net proceeds should be split on sale is clear and unambiguous.

Can I Change The Method Of Ownership?

Even if you hold property as joint tenants now, you may wish to hold it as tenants in common in the future (and visa versa). It is therefore important to keep this under review, and to seek specialist advice should there be a need to change the method of ownership in the future.

It is possible to prepare a Declaration of Severance to sever the joint tenancy so that the property is then held as tenants in common, and it is also possible to change ownership as tenants in common into a joint tenancy.

The severance of a joint tenancy does not have to be agreed by all parties, as a unilateral severance can be prepared. This might be preferable following an acrimonious breakup/divorce, or where someone has lost mental capacity and so cannot consent. It is also possible to have an automatic severance of a joint tenancy should a co-owner become bankrupt.

Why Is This Important?

Agreeing and evidencing the intention of the co-owners as to how property is to be held and how it should be split should it come to be sold is extremely important to avoid unnecessary and costly disputes later on. In some situations, the Court may have to become involved where the intentions were not clear or the circumstances are ambiguous – this is stressful for all those involved, time consuming and expensive. It also means that the Court may infer a share of ownership, which you did not intend, so it’s always best to agree and record the agreement at the outset.

For further information regarding the above or if you would like to discuss a Wills & Probate related query with one of the team, please call us on freephone 0800 011 6666 or e-mail the team at legal@timms-law.com.