Joint Ownership

There are different ways in which a property can be owned. Clarity over this point is important so that is can be established how the property can be dealt with and who is entitled to what.
 

Beneficial Joint Tenants
If a property is owned as beneficial joint tenants then this means that the whole property and the proceeds of its sale belong to both owners as one. They do not have separate shares each – they both own the whole thing. Neither of them have a separate share which they can sell or leave in a will. If one person dies than the survivor becomes the owner of the whole property. This happens automatically without any further formality. This method of ownership suits most married couples but by no means all. Even married couples should consider their position and requirements - this can be particularly relevant when making a will and dealing with Inheritance Tax planning.

Tenants in Common
This method of ownership still means that the property is owned jointly however, each joint owner has a distinct share. Those shares can be either equal or unequal depending upon the agreement that is reached between the owners. If the property is owned in this way and one owner dies, then that deceased owners share will pass in accordance with the terms of that persons will or under the rules of intestacy, if no will has been made. If a property is owned as tenants in common then it would be prudent for there to be a separate deed setting out those shares in the property and how the proceeds of sale would be divided if the property was sold. Such a document is usually called a ‘Trust Deed’ or a ‘Declaration of Trust’.

How do you find out how you own a property?
The answer to this is that you need to look at the title deeds. Most house deeds in England or Wales have a registered title. This means that there will be a record of ownership at HM Land Registry. You may have a print of the register entries but you will need to get a copy from HM Land Registry to check up to date information - you can do this via the Land Registry online service, see Useful links.  Once you have a copy of the register you will find there is a section headed ‘Proprietorship Register’. If you look in that there may be a entry which reads something similar to:

“No disposition by a sole proprietor of the land (not being a trust corporation) under which capital money arises is to be registered except under an order of the Registrar or the Court”.

If that entry is there, then you are tenants in common. If it is not, then you are beneficial joint tenants.

If the title to the property is unregistered (which is now becoming quite unusual) then you need to look at the conveyance to the two joint owners. The wording is less specific than with registered land but at some point there should be a clause which states that the property is conveyed to the purchasers “........as joint tenants” or “..........as beneficial joint tenants” or “.....as tenants in common”. This shows the position as it was at the date of that conveyance - it may have changed - see below.

Changing the way you own the property
If you are beneficial joint tenants and wish to become tenants in common (and remember that you need to be tenants in common for any of the trust deeds to be effective, see Useful links) then the procedure you need to adopt depends on whether the property has a registered title or an unregistered title.

For both registered and unregistered titles the first step is for one party to serve on the other a notice to say that the joint tenancy has ended. There is no special form of words needed for this - just a letter from one party to the other. As a guide the letter could say something like:

“Please accept this letter as notice that the joint tenancy in the property known as xxx is herby severed and we will henceforth own this as tenants in common”.

This form of notice does not have to be in any specific form - just  so long as the meaning is clear. The other party should countersign to signify that they are aware of the notice.

Most property in England and Wales has a registered title and if this is the case then you need to register a Restriction at HM Land Registry. In order to do this you have to complete a Land Registry Form SEV. This can be downloaded for free from the Land Registry website, see Useful links. The form is quite straightforward.

Once the form is completed you will need to send it to HM Land Registry. There are 24 District Land Registriess around the county who each deal with different geographical areas. You can find out which is the relevant area to you from the listing which they have on the Land Registry website, see Useful links.

If the title is registered then the registration of the Restriction is essential as it is this that gives notice to anyone dealing with the title that there is a tenancy in common. If the Restriction is in place then a buyer has to pay the purchase money to at least two trustees - if one has died a second has to be appointed. This stops the survivor of joint proprietors selling the property without dealing with the deceased owners share.

If the title to your property is not registered at HM Land Registry then there is no title against which a restriction can be registered. Instead a note (called a memorandum) of the change of method of ownership (called severance of joint tenancy) should be written onto the conveyance to the joint owners. The wording could be something along the lines of:

“Memorandum
By a notice of severance dated the   day of   20   and made between the parties to this conveyance the parties declared that they would henceforth hold the property comprised herein and the net proceeds of sale thereof upon trust for themselves as tenants in common.”

Once that note has been written on to the conveyance then this serves to tell anyone dealing with the title to the property that it is owned as tenants in common. If it is not written on then a purchaser of the land would not be deemed to be aware of the change in manner of ownership.

Note that neither method of changing the manner of ownership regulates in any way the arrangement between the parties - to do this you need to set out your requirements in a separate trust deed, see Useful links.

If you are already tenants in common and wish to change the manner of ownership to beneficial joint tenants then there are two aspects to this. The first is a declaration as to the change of method of ownership and the second is to withdraw the joint proprietorship restriction registered at HM Land Registry. If the title is not registered then of course there is no joint proprietorship restriction to withdraw.

You can download a suitable form of declaration below. The form to cancel the Restriction against the title at HM land Registry is called a Form RX3 and it is available for free to be downloaded from the Land Registry website, see Useful links.

Declaration as to beneficial joint ownership
Suitable for property with registered title
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Declaration as to beneficial joint ownership
Suitable for property with un-registered title
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If the property is in the sole name of one party but is held for the joint benefit of two people then this too can be recorded in a trust deed. See sole ownership in Useful links.

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The documents available on this site have been prepared for use in England & Wales. They may not be valid if used in other areas.