What is a joint tenancy?

When property is owned jointly by 2 or more people they are said to own the property either as “joint tenants” or as “tenants in common”.

How do I know whether I am a joint tenant or a tenant in common?

If you are unsure whether you own property as joint tenants or as tenants in common, if the property is registered with the Land Registry, as most properties are these days, confirmation can be obtained by obtaining “office copies” of the register from the Land Registry. If the property is held as tenants in common the office copies will contain what is known as a “Form A restriction” which reads as follows:

“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court”.

If the office copies do not include this wording then you are probably a joint tenant.

The title documents relating to the property will also record whether the property was purchased or transferred to the co-owners as joint tenants or tenants in common. However, the manner in which the property is owned may have changed since the title documents were prepared. For this reason it is usually necessary, in the case of registered property, to obtain clarification by obtaining office copies from the Land Registry.

What happens when one of the joint tenants dies?

Where property is owned by joint tenants upon the death of one of the owners their share passes automatically to the other joint tenant or tenants. This is the case even if the owner has made a will purporting to leave his or her share of the property to another person.

This is in contrast to the position relating to tenants in common who by making a will are free to leave his or her share in the property to who ever they wish when they die.

Can I do anything to prevent the other joint tenant from inheriting my share in the property?

If a joint tenant wishes to leave his or her share in the property to someone other than the other joint tenant it will be necessary for him or her to “sever” (bring to an end) the joint tenancy. This is done by one of the co-owners serving a “notice of severance” on the other co-owner of the property. If the property is registered at the Land Registry an application for a “Form A restriction” using the Land Registry form “SEV”, should be sent to the Land Registry.

When a joint tenancy is severed the co-owners become tenants in common and at that stage will be free to leave their share of the property to who ever they wish.

From an inheritance point of view is a joint tenancy better than a tenancy in common

The question as to whether a tenancy in common is better than a joint tenancy, from an inheritance point of view, will depend upon the circumstances of each individual.

Unmarried couples may, for example, prefer to hold property as joint tenants to ensure that if one of the parties dies the surviving party will automatically inherit the deceased’s share in the property.