Buying together: joint tenants or tenants in common?

Joint tenants and tenants in common explained

The names are old and misleading: neither has anything to do with renting. They describe how the owners share the benefit of the property, meaning the money it would bring if sold. Whichever you choose, the owners are named on the title at HM Land Registry (up to four of them), and all the named owners must sign to sell or mortgage it.

• Joint tenants: you do not have separate shares. Together you own the whole. If one of you dies, the property belongs to the survivor automatically, whatever the will says. This is called survivorship.
• Tenants in common: each of you owns a defined share, equal or unequal. When one of you dies, that share does not go to the other owner automatically. It passes under the will, or under the intestacy rules if there is none.

Which is right for you

There is no single right answer, and the rules are not the same as in other countries, so do not assume that what applies at home applies here. We explain the options in your case before you decide. Your choice is recorded in the transfer deed at completion; a joint tenancy can later be changed to a tenancy in common by severance, explained below.

• Married couples and civil partners who have put in similar amounts and want everything to go to each other often choose joint tenants.
• Couples where one of you has children from an earlier relationship often choose tenants in common, so each share can go to those children under a will.
• Unmarried partners who have contributed different amounts usually choose tenants in common, with the shares written down.
• Friends, siblings, or a parent and child buying together almost always choose tenants in common, because each of you will want your share to go to your own family.

Unequal contributions and a declaration of trust

If one of you pays more of the deposit, or will pay more of the mortgage, a declaration of trust records who owns what. It must be in writing and signed, and it is usually prepared as a deed signed by all the owners. If neither the transfer deed nor a declaration of trust records your shares, the starting point for a couple who buy a home in joint names is that you own it equally, whatever each of you paid, and proving that you meant different shares is difficult and expensive. The starting point can be different where people buy together as an investment rather than as a shared home.

• The shares, as fixed percentages or as a formula, for example each of you getting your own deposit back first and the rest being split equally.
• How mortgage payments and major works are counted if one of you pays more.
• What happens if one of you wants to sell, or wants to buy the other out.
• Your lender does not follow your shares: each of you is responsible for the whole mortgage.

What happens if you separate

For married couples and civil partners, on divorce or dissolution the family court can decide what happens to the home, and it is not bound by the title or by a declaration of trust, although it can take them into account. Under the current law, unmarried partners have no equivalent: the title, the transfer deed and any declaration of trust usually decide who owns what. That is why a declaration matters most for couples who are not married.

If you agree that one of you will keep the home, the other is taken off the title by a transfer of equity. If you cannot agree whether to sell, or what each of you owns, an owner can ask the court to decide under the Trusts of Land and Appointment of Trustees Act 1996. We do not give family-law advice; for divorce and financial settlements you will need a family solicitor.

• Separating: taking a name off the deeds
• Co-ownership disputes

Changing from joint tenants to tenants in common

You can change from joint tenants to tenants in common at any time while you are both alive. This is called severance. You can do it together, by agreement, or one of you can do it alone by giving the other owner a notice in writing that you wish to sever the joint tenancy. A notice does not need their agreement or signature, but it must be properly served, for example by handing it to them, leaving it at their address or sending it by recorded post, and you should keep proof of how it was served.

Severance changes how you own the property between yourselves, not whose names are on the title. After severance you usually own equal shares, unless you both agree different shares in a declaration of trust. An application can then be made to HM Land Registry, by one owner alone if need be, to enter a restriction on the title known as a Form A restriction, which shows that the owners are no longer joint tenants. A will cannot sever a joint tenancy, and neither does separation or divorce on its own. If you have separated and do not want the survivorship rule to apply, the joint tenancy has to be severed while you are both alive, usually by notice.

Why a will matters

If you are tenants in common, your share passes under your will. Without a will it passes under the intestacy rules, which give nothing to an unmarried partner, so the person you live with could end up co-owning the home with your relatives, and their only route may be a claim in court. The government has consulted on new rights for unmarried partners on separation and on death, but these are proposals, not law. Under the current law, getting married or forming a civil partnership usually cancels an existing will, so review yours if you do. We do not write wills; a will-writing solicitor can prepare one that deals with your share.