Having decided to buy a property with someone else you will be asked whether you want to own the property as joint tenants or tenants in common. The word “tenants” has nothing to do with tenancies in the context of a rental agreement but both terms have a specific legal meaning.
Joint Tenancy when buying a house
With a joint tenancy each person owns the whole of the property. If one of you dies the property automatically passes to the other joint tenant without the need to make a Will and the without the need to take out a Grant of Probate. The survivor simply lodges a copy of the Death Certificate at the Land Registry and the Land Register is then amended. No more than four people can own a property as joint tenants at any one time. Should you decide to sell the property then in theory each of you is entitled to one half of the net proceeds of sale, assuming there are two of you. This assumption can be overridden, however, by a Divorce court particularly in the situation where there are children involved and there is a need to provide a home for them.
Buying a house as Tenants in Common
With a tenancy in common you actually specify the shares in which you own the property. This can be equally or any other proportionate share or division that you may wish.
If one of you dies then the deceased’s share in the property will not pass automatically to the survivor. The deceased’s Will determines who takes theshare. If the deceased has not left a Will then their share is distributed under the Intestacy Rules.
Declaration of Trust for buying a property
There are many circumstances where the Purchasers of a property may contribute different amounts to the purchase and so wish to become tenants in common. There could, for example, be a situation where there is a second marriage and each party wishes to ensure that the children from their first marriage inherit their share in the property rather than their new spouse.
Another very common situation is a couple buying their first home together where parents have contributed to the deposit and there is a wish to protect that deposit should the couple split up. In these circumstances a tenancy in common is preferable to ensure that that interest is protected. Moreover, we would advise the drawing up of a Trust Deed, which is a document that sets out the respective shares in the property and can be used in the event of a dispute.
If you opt for a joint tenancy in common, you should make a Will to ensure that your share of the property goes to the person(s) of your choice.
Can one or both of us change the way we own the property? (E.g. If we decide to separate)
Yes; if you want to change the way you own your property then please speak to one of our Conveyancing Solicitors who will advise you on the process.
If I have a joint tenancy can I leave my share of the property to someone else apart from the other joint tenant?
No. Your interest will pass automatically to the other joint tenant unless you exercise your right to sever that joint tenancy before you die. You will need to consult a Solicitor to do this.
Can I have a joint tenancy even if we contribute differently to the purchase price, mortgage or maintenance of the property?
Yes, you can. With a joint tenancy, however, your contributions have no effect on ownership and you will each own the whole of the property as indicated above. If you wish to reflect your shares you will need a tenancy in common.
Talk to our conveyancing solicitors
If you are buying a house and need specialist legal advice, speak to our dedicated conveyancing team today.
Bray and Bray has three main offices in Leicestershire, contact us to discuss an enquiry or a case you have or feel free to pop in and see us at your local office by clicking on the links below:
Leicester call us on 0116 254 8871.
Hinckley call us on 01455 639 900.
Market Harborough call us on 01858 467 181.