What is the difference between tenants in common and joint tenants?
The whole conveyancing process can be quite confusing, and the terminology doesn’t help. When you are buying a home jointly, you will come across the terms joint tenancy and tenants in common – but what’s the difference?
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What is joint tenancy?
If you purchase property as joint tenants, it means that you are both joint owners of the property and as such are equally entitled to it.
So, for example, if you own a property jointly with your partner and one of you dies then your interest in the property will pass automatically to the surviving owner – regardless of what your will says, the other becomes sole owner of that property.
In contrast, tenants in common own the property in specific shares i.e. equal shares [50/50] or unequal shares [e.g. 70/30].
With tenants in common, if you die, then your interest in the property does not automatically pass to the survivor – instead, it will be classified as part of your estate and as such will pass under the terms of your will [unless you didn’t have a will, in which case the property will be transferred according to the intestacy rules].
If you own property as tenants in common in unequal shares, it’s absolutely essential that you get a declaration of trust drafted up by a specialist conveyancing solicitor – documenting the differing shares in your property owned by you both.
If you are tenants in common, then regardless of whether you own the property in equal or unequal shares, make sure you both get a will – so that if one of you passes on – you can control to whom your share of your property passes.
Click here to find out more about making a will.
Joint Tenancy vs Tenants In Common – what would suits us best?
Married couples are usually the ones who opt to buy property as joint tenants. When one of the partners dies, their share in the property will automatically go to the other since ownership is jointly held. This is why a married couple’s property is viewed to be equally owned unless stated otherwise.
In contrast, friends, family or unmarried couples tend to purchase often as tenants in common since each individual maintains separate share within the joint ownership. Unmarried couples may choose to share the property as joint tenants at some point down the line.
Joint Tenancy vs Tenants In Common – Can we change our sort of ownership?
Yes – it is possible to transfer ownership in this way.
When it comes to changing from tenants-in-common to joint tenants, this is often what happens when a couple get married and would rather have equal home ownership rights
Change over from joint tenants to a tenancy in common often takes places when the reverse happens i.e. when a relationship breaks down and the couple is looking to divorce or separate they would rather their share of the joint property be left under their will to someone other than their ex. To accomplish this, a legal document known as “a Notice of Severance” must be prepared in order to officially sever the joint tenancy. This ensures that each tenant’s share of the property remains secure and will not be inherited by their former partner upon death. Our experienced Property Conveyancing Solicitors handle these kind of changes regularly- and we are here to help you fully protect your legal rights.
Can transferring from Joint Tenancy to Tenants In Common save me tax?
Optimise Property Tax Specialists suggest:
“It is possible to change the ownership of a property from joint tenants (50%/50%) to tenants in common (99% in favour of a basic rate taxpayer /1% in favour of a high-rate taxpayer. This can save buy-to-let property owners a lot of tax. They do need to be mindful that changing a property from joint tenants also requires you to complete a Form17 and submit it with a copy of the trust deed to HMRC – read more”
Want to know more? Call our accredited Law Society Conveyancing Scheme solicitors today.
But what happens to a property if one of the owners loses their mental capacity?
Whether the property is held as joint tenants or tenants in common, both legal owners must make decisions together. So, if your joint owner becomes incapacitated and is therefore act the mental capacity to make decisions about the property, an application to the Court of Protection Order has to be made. This application procedure can be complicated so it’s best to consult a specialist private client solicitor for advice before attempting it on your own. And our private client team have plenty of Court of Protection experience.
Click here to find out more about how our Court of Protection Solicitors can help you