When two or more people own real property (for example, residential property) there are two ways that the property could be owned, either as joint tenants or as tenants in common. There are some important differences between the two, particularly when it comes to the death of one of the owners.
When a property is owned by two (or more people) as joint tenants, all of the joint tenants together own the whole property.
When a joint tenant dies, the surviving joint tenant becomes the owner of the whole property. Upon the death of a joint tenant, that joint tenant no longer has an interest in the property, and consequently the interest which the joint tenant had does not form part of their deceased estate and is not available for distribution to the beneficiaries of their will.
It is most common for a husband and wife to hold property as joint tenants.
Tenancy in Common
Tenants in Common each own their individual share separately from the other owners of the property. Each share may be owned equally, or unequally (for example one person may own a 1/100th share, while another owns a 99/100th share).
Upon the death of a person who owns part of a property as a tenant in common, their interest will pass according to their will, or if they don’t have a will, according to the law on intestacy.
There are some notable differences between joint tenancy and tenancy in common.
Firstly, while a person who owns part of a property as tenant in common is free to sell their share as they wish, a person who has an interest in a property as joint tenant is not permitted to sell their interest in the property. The only way they could dispose of their interest if the other joint tenant does not want to sell is by “severing the joint tenancy”. This is a process whereby the joint tenancy is converted to a tenancy in common in equal shares. A joint tenant can do this of their own accord, however all other owners receive notice of this severance.
Secondly, the manner of ownership of a property will likely influence a person’s estate planning. A joint tenant who wishes to give their interest in a property to someone other than the co-owner will not be able to do so unless the joint tenancy is severed. It is crucial to seek advice in relation to your will if you own property.
Turner Freeman advice
If you are considering purchasing property, or already own property and are thinking about making a will, please contact Turner Freeman. We are Accredited Specialists in both Wills & Estates Law, as well as Property Law and will be able to provide you with expert advice.