Buying a house or flat together – our specialist property solicitors
Too often, conveyancing solicitors give inadequate advice to protect co-owners of properties who do not contribute equally to the purchase price of their home and/or do not wish for their stake in the property to be passed over to their co-owner should they pass away.
Joint home ownership – the two important variations
Joint purchasers should be made aware that there are two ways in which title to a jointly owned property can be held:
1. Joint Tenants
Under this arrangement, you and your fellow joint tenant will own the whole property together. in legal terms, Joint Tenancy is a type of property ownership in which two or more people possess an undivided interest in the same real estate. You will have no specific share in the property and you will be unable to leave a share of the property in your will. Should you separate from your fellow joint tenant or decide to sell the property it will be assumed that you each hold a 50% share of the property’s value, regardless of your respective contributions. Upon the death of either joint tenant, the share will automatically pass to the other.
This arrangement may not suit relationships in which one tenant makes a significantly larger contribution that the other – or if a tenant wishes to leave their share of the property so someone other than their co-owner upon death. And when married couples buy a property together they typically do so as joint tenants so that upon death of one partner, full ownership of the property passes automatically to the surviving spouse.
2. Tenants in Common
Tenants in Common will have a specified shared in the property which may be equal or unequal as set out in the Declaration of Trust, a document determining each party’s interest in the property, to be used in the event of separation. Shares in the property can be passed on to another person, either during your lifetime or in your will. In the absence of a will, the intestacy rules will prevail.
You may prefer this arrangement if you made unequal contributions to the property price or if you have children from a previous relationship and you would like them to inherit your share upon death for example. Friends, family or unmarried couples are most likely to buy property in this way. Tenants in common enable each individual to maintain separate interests within the joint ownership, while also providing flexibility for future changes such as committing the property to joint tenancy.
Joint home ownership – advice from the Law Society
The Law Society (the representative body for solicitors in England and Wales) recommends that tenancy in common is the appropriate form of co-ownership where:
1. the couple is unmarried and
2. they contribute in unequal shares; and
3. there are children from a previous relationship
Involved in a joint home ownership dispute?
Click here to read more about Joint Property Ownership Disputes or call us on 0800 1404544 for free initial phone advice.
Separating as a couple? Want to know more about your legal position?
Click here to read more about Separation and how our Solicitors can help.
Changing your type of ownership
In certain circumstances you may want to alter the way you both own property – to transfer ownership. The most common reasons are as follows:
- Converting from tenants in common to joint tenants? This something you might want to consider, for example if you get married and would prefer equal rights to your home
- Converting from joint tenants to tenants in common ? This is perhaps most commonly found when a relationship fails and couples separate or divorce and prefer leave their share of the property to another person. In order to protect their rights with regard to the shared asset, joint tenants may opt to convert the tenancy from joint tenants to tenants in common by serving what is known as a “Notice of Severance”. If this step is not taken, then upon the death of one of the owners, the surviving owner(s) would assume full ownership even if that was not the desired outcome.
Joint Home Ownership – did you get the wrong legal advice?
However, some solicitors offer poor advice, leading purchasers to become Joint Tenants inappropriately. Our specialist property solicitors know better and would be happy to help you make a professional negligence claim if you have been the victim of a solicitor conveyancing error.
Click here to read more about how to Claim Compensation Against Negligent Conveyancing Solicitors
These can be an additional protection for you when buying a property together. These agreements are also known as Living Together Agreements. Clearly drafted agreements can set out ownership of the property. This avoids confusion and arguments further down the line. For example, if one partner paid for the house deposit, a well drafted Cohabitation Agreement, prepared by experienced divorce solicitors, will allow them to recover some or all of the deposit. This may not be possible if there was no agreement in place.
Click here to read more about cohabitation agreements
What happens where one owner of a jointly owned property loses mental capacity?
If a joint tenant or tenant in common is unable to make decisions about a shared property due to losing mental capacity, then an application must be made to the Court of Protection for an Order that would give permission for another party to take decisions on their behalf. This process can be complex, so seeking advice from an experienced lawyer specializing in private client law should be considered before attempting it alone.
Looking at Joint Home Ownership? Call Us Now
Whether you’re based locally to our 4 offices in Wiltshire and Hampshire, or elsewhere in England and Wales, our solicitors can help.
To speak to us about how our conveyancers can help you, call us today – and don’t forget we always offer free initial advice on the phone.
- Call one of our team on FREEPHONE 0800 1404544 or on (01722) 422300 OR
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