Joint tenants or tenants in common – which is right for me?

When buying a property both unmarried and married couples have a choice as to whether to register the title as joint tenants or tenants in common. Under a joint tenancy the couple jointly own the property whilst under a tenancy in common each own a specified share. An analogy is that owning any property by way of joint tenancy is like owning an apple and by way of a tenancy in common is like owning an orange with distinct segments.

Many married couples choose to own as joint tenants where the right of survivorship applies, and the surviving spouse will own all the property on their partner’s death. For the deceased this means that they cannot leave a share in the property to anyone else in their will because there is no share to leave. Divorcing couples are advised to consider severing their joint tenancy so that they may leave a share to others, but this can prove to be a double-edged sword as if their spouse predeceases them before property matters have been resolved on divorce then that share may pass to another person under their spouse’s will. This can be challenged by the surviving spouse, but this involves more work and litigation to ensure that the survivor receives what they would have received if financial and property issues had been resolved between the divorcing couple prior to the death.

Joint tenancy is also the simpler option as there is no requirement to work out how much each partner has contributed to the purchase price.  On death if the property is registered at the Land Registry a copy of the death certificate can be sent to the Land Registry and then the property will be held in the sole name of the survivor.

Tenants in common can help couples especially unmarried couples to clarify the situation and consider the matter before purchasing a property. A declaration of trust can set out the contributions and moving forward as contributions may vary towards the equity in the property the percentage interest of each person can be varied by a new declaration of trust.

Tenants in common also allows co-owners to leave their share in the property to beneficiaries other than their partner when they die. This is a common wish for couples in a second marriage when they would like to leave their share in the property to their children from previous relationships.

If couples wish to plan for long-term care, then they may wish to own as tenants in common and in their will leave a life interest trust for the survivor.