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Joint Property Ownership

If you are planning to buy a property which is to be owned by you jointly, you will need to decide exactly how you wish to hold the property.

There are two alternatives - you may hold the property as “Joint Tenants” or “Tenants in Common”.

“Joint Tenants” are regarded by the law as owning the whole of the property without any form of separate share or distinction between them.  On the death of one of the Joint Tenants the “rule of survivorship” will apply.  This means that the whole of the property will automatically pass to the survivor or survivors and the ownership of property held as Joint Tenants cannot be altered by a Will.

The “rule of survivorship” will also apply whatever financial contribution the joint owners have each made to buying the property.

By contrast, under a tenancy in common, the joint owners are regarded in law as having separate and distinct specified shares (for example, you can hold the property in equal shares, or 75/25 per cent shares).

The difference here is that the rule of survivorship does not apply.  On death your share in the property will pass as stipulated in your Will or, if you fail to make a Will, in accordance with the intestacy rules.  Under these rules, your share may pass to somebody who you did not intend to receive it, so it is particularly important, if you decide to hold the property as Tenants in Common, that the joint owners make their Wills.  A tenancy in common therefore gives you greater control over the destiny of your share in the property.

It is straight forward and relatively inexpensive to change from a joint tenancy to a tenancy in common.  If you want something more complicated it will be necessary to draw up a detailed Declaration of Trust, and your solicitor should be able to provide you with an estimate of the cost.

Do bear in mind that whether you have a joint tenancy or a tenancy in common, this will not affect the fact that to the outside world the joint owners will be the legal owners of the property and fully responsible under your obligations contained in any mortgage on the property.  It does not mean that you are only tenants of the property!

Patricia Moon is a Legal Executive with QualitySolicitors Gould & Swayne based in Glastonbury.

Legal advice may vary with the circumstances of each case - be sure to take your solicitor’s advice.

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