Tenants In Common

Tenants in common

This page was last updated on 1 October 2021

Tenants In Common In 2021

When you go to buy property with another person or people, your conveyancing solicitor will ask you what style of property ownership you want to have, a tenancy in common or a joint tenancy.  There are numerous considerations to make when deciding which option is right for you. The type of ownership will make a difference to what you are able to do with the property if one party dies or decides they want to sell.

Topics that you will find covered on this page

You can listen to an audio recording of this page below.

What does a tenancy in common mean?

Tenants in common own different and separate proportions of the same property. The shares do not have to be the same size. 

For example, you could both have a tenancy of your own bedroom, and be entitled to use the communal spaces, or you could each have a 50% share of the property. 

What is a tenancy in common agreement?

This is just the agreement you have to make to have a tenancy in common. You can make this agreement when you buy or change your relationship later on.

What happens if one tenant in common passes away?

After the death of a tenant in common, there part of the property does not pass on to the other owners automatically, instead they can leave in their will as they want. 

What is the difference between a joint tenancy and a tenancy in common?

Both joint tenants have full rights to the entire property. For example, you and your partner both fully own the property together.

Here is a short video to explain the issues.

What happens if a joint tenant dies?

After the death of one joint tenant, the whole property automatically goes to the other joint owner. You therefore cannot dictate what should happen to the property in your will. 

Who is a tenancy in common for?

This arrangement is for people who want to own the property with another person, but they want to leave their share in the property to someone else in their will. This is popular if you have children from another marriage and want to guarantee that they inherit after you die. It is also useful for people who want to reduce the amount of their estate accessible for care home fees. 

Do all tenants in common need to own the same size share?

You can all have different size shares as long as they add up to 100%. If you do not specify the shares in your tenant in common agreement, the presumption is that you have equal shares. 

What should we do if we want to put different amounts of money into the purchase price of the house?

If you are beneficial joint tenants, it is a good idea to get a solicitor to write up a trust deed. This will set out your shares. The trust deed can be used if later there are disputes about who owns what shares, or what should be done if one of you dies. 

Do all the owners need to have got an interest in the property at once?

Unlike a joint tenancy, you can all enter the tenancy in common at different times. This means if two people already have a tenancy in common, you can join and become another tenant.

Advantages of tenants in common

In the discussion of joint tenants vs tenants in common, there multiple benefits to being tenants in common:

  • You get to decide who inherits your share of the property. Therefore the arrangement is well suited to people with children from another marriage, unmarried couples, siblings or business partners buying together. These people are less likely to want the co-owner to inherit their estate. 
  • You can decide what shares of the property each party gets, so it can reflect the amount each party has put into the deposit or bills.
  • It will protect your interest in the property and the amount you invested.
  • It is possible to sell your own share of the property even without the co owners giving consent. Therefore, it will be a better option if your relationship is unstable. If you and your partner split and you have a joint tenancy, one party cannot sell without the other’s consent.

"Tenants in common own different and separate proportions of the same property. The shares do not have to be the same size.  For example, you could both have a tenancy of your own bedroom, and be entitled to use the communal spaces, or you could each have a 50% share of the property. "

Disadvantages of tenants in common

There are risks involved with a tenancy in common agreement, including:

  • A joint tenancy is simpler and you do not have to work out shares. 
  • If a co owner dies and they do not have a will in place, then the property will go through the probate process. This is costly and takes time, so your children may not receive your inheritance as quickly.
  • Married couples generally do not get an advantage from a tenancy in common, as if one of them dies, the property will be passed onto the surviving spouse anyway. 
  • If one of the owners wants to sell, but the co tenants disagree, the co owner can serve a partition action. This might mean the other joint tenants have to sell the property even though that is not what they want. 
  • If one of the co owners dies, then there is potential for dispute between the deceased joint owners surviving family and the remaining co owner. 
joint tenants vs tenants in common

What questions do I need to ask when considering joint tenants vs tenants in common?

There are several considerations, including:

  • Who do I want my ownership interest in the property to go to after I pass away, and do I want the right of survivorship to apply?
  • Do I want the joint ownership to reflect the fact we made different contributions to the purchase price?
  • Are there any factors relevant to estate planning or tax that mean it would be a good idea to have a joint tenancy agreement or a tenants in common agreement.

Who gets the sale proceeds when tenants in common sell the property?

If the co owners agree to sell, then they each get the costs and benefits according to their shares. Otherwise, tenants in common can each sell their share or leave it in their will however they please.

What is the right of survivorship? 

This is that for joint tenants, their ownership interests in the property end when they die. Therefore, there is no share to pass on as inheritance, so if they are a co owner with another person, the other person will own the whole property once the first person dies. 

What are the possible tax consequences of being tenants in common or joint tenants?

For joint ownership, when one owner dies, the other party automatically inherits their part of the property without needing to pay tax. This may not be true for sale proceeds inherited in a will or passed onto another person. 

How is inheritance tax due on joint tenants in common?

Inheritance tax is payable on the whole estate of the deceased owner, taking into account their share in the property. Depending on the size of the estate, there is a risk you might need to sell the property to pay the tax bill. You should get legal advice if you are concerned about estate planning. 

How does a tenancy in common affect care fees?

If you own property with someone which is not your home, where you are married or civil partners, the care home assessment can only cover your share in the property, not the entirety of the property. This area has complex rules so you should use a specialist service or a solicitor authorised and regulated by the SRA

Is it possible to switch from being joint tenants to being tenants in common?

You can do this. This is most likely to be necessary if you divorce or split up from your partner, and so you want to pass on your share of the property in your will to someone else. 

Is it possible to switch from being tenants in common to being joint tenants?

Yes you can. This is common if you get married so you want to own the property together.

tenancy in common agreement

Is it possible to switch from having sole ownership to being tenants in common with someone else?

You can do this, such as if you own a property and want to add your partner to the ownership. Transferring ownership is the legal term for this.

When buying a property, what ownership relationship is better for unmarried couples?

It is normally wise to look for legal advice. However, it depends on your relationship with each other, and if there is a big difference in the amount you each put into the purchase price. It is a good idea to consider a declaration of trust to protect each of your rights in the home. 

How many individual people can co own a property together?

While normally only two people own properties together, often as partners, up to four people can legally own property together. 

When buying a property, does the ownership type make a different to the mortgages I should consider?

People with tenancies in common and joint tenancies generally both still get a joint mortgage. In fact, for most properties, the mortgage application is made before you decide what relationship between the owners you want to have. 

Can tenants in common get separate mortgages?

By law, you can each get separate mortgages. However, practically speaking, it is unlikely a mortgage lender would agree to this, so you would need to get a joint mortgage.

What do I do if another owner has lost mental capacity?

If you want to sell the property and one of the joint owners has lost capacity, you need to make an application to the Court of Protection. You should use a legal service to do this.

How do I switch to being tenants in common instead?

In England and Wales, if you are joint owners, to become tenants in common, you need a notice of severance. You also need to apply to HM Land Registry for a Form A restriction, which will add a note to the land register. 

In Scotland, you must alter the title deeds. Each joint tenant must agree to this together. 

In Northern Ireland, you have to fill out a form called ‘transfer of whole.’

What if the other joint tenant does not agree to severance?

If the other owner does not give permission, you should:

  • Serve a notice of severance on the other parties
  • Fill in the Form A restriction
  • Provide the relevant supporting documents
  • Send the documents to the Land Registry. 

Getting this change done is free, but it is a good idea to get a solicitor or conveyancing expert to do the process on your behalf. 

How do I change to being joint tenants?

In England and Wales, you need to fill out a trust deed, and send it to the Land Registry. 

In Scotland, you must alter the title deeds.

In Northern Ireland, you have to fill out a form called ‘transfer of the whole and or part’ and send it to Land and Property Services

tenant in common

What am I required to do to sever the joint tenancy?

Steps might be necessary to change your will. If you are married or in a civil partnership, and so were going to leave your inheritance to your partner, then you decide to sever the joint tenancy to a tenancy in common, you need to change your will to leave your property to your children or someone else. 

Should I change to tenants in common?

It is most common that people change from joints tenants to tenants in common when they get a divorce or separate from their partner. This means an owner can pass on their percentage share of the property to someone who is not the co owner, i.e their ex partner. 

How do I set up a tenancy in common relationship?

You should get advice from solicitors authorised and regulated by the SRA, i.e. the Solicitors Regulation Authority. They can also give you advice on mortgages and a declaration of trust.

Do I need to get legal advice? 

Normally the question of the relationship between co-owners is during the conveyancing process, so you will already be working with a specialist service. For severance, you do not need a specialist service, but it is recommended, as they will know how to follow the rules.

Article author

Katy Davies

I am a keen reader and writer and have been helping to write and produce the legal content for the site since the launch.   I studied for a law degree at Manchester University and I use that theoretical experience, as well as my practical experience as a solicitor, to help produce legal content which I hope you find helpful.

Outside of work, I love the snow and am a keen snowboarder.  Most winters you will see me trying to get away for long weekends to the slopes in Switzerland or France.

Email – katy@helpandadvice.co.uk

LinkedIn – Connect with me

Frequently Asked Questions

What does a tenancy in common mean?

Tenants in common own different and separate proportions of the same property. The shares do not have to be the same size. 

For example, you could both have a tenancy of your own bedroom, and be entitled to use the communal spaces, or you could each have a 50% share of the property. 

What happens if one tenant in common passes away?

After the death of a tenant in common, there part of the property does not pass on to the other owners automatically, instead they can leave in their will as they want. 

Who is a tenancy in common for?

This arrangement is for people who want to own the property with another person, but they want to leave their share in the property to someone else in their will. This is popular if you have children from another marriage and want to guarantee that they inherit after you die. It is also useful for people who want to reduce the amount of their estate accessible for care home fees. 

Do all tenants in common need to own the same size share?

You can all have different size shares as long as they add up to 100%. If you do not specify the shares in your tenant in common agreement, the presumption is that you have equal shares. 

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