Where a property is purchased in joint names the parties will hold the legal estate either as joint tenants or tenants in common.
Joint tenants are entitled to an equal share of the property whereas tenants in common are able to hold the property in either equal or unequal shares. If the property is held as joint tenants on the death of one co-owner that person’s “share” automatically passes to the other co-owner(s). This is known as the doctrine of survivorship.
If the property is owned as tenants in common on the death of one co-owner that person’s share passes by Will or in accordance with the Rules of Intestacy.
The simplest method of recording whether parties intend to own the property in equal or unequal shares is to make an express declaration to that effect using a Land Registry form or a separate trust document.
When such issues arise for the co-owners it is essential that extra care is taken as a significant number of risk areas can arise.
When taking advice on the distinction between a beneficial joint tenancy and a tenancy in common it is not enough to simply rely on the basic differences as the implications of the different forms of ownership should also be considered and you must take advice as to the effect of separation or death of one of the parties on each form of ownership.
In order to be able to get accurate and appropriate advice you must take detailed instructions giving your advisor information about all your circumstances. These could include whether you have previously been married or have children from a previous relationship or have someone else live in the property with you as such circumstances mean that others may be beneficially entitled or interested in the property.
Another vital element is a discussion on how the purchase monies are to be provided and by whom. It has become more and more common for purchase money to be contributed by parents or grandparents looking to help their children and grandchildren get on the property ladder and consideration must be given to the rights/protection of the investment provided by such third parties. This is becoming extremely relevant when advising on property ownership in the context of Wills.
It is also important to consider whether the joint purchasers of property may be needed to be advised separately even if they are married or in a civil partnership or co-habiting. You should be alive to the possibility of a conflict of interest arising in this situation and consider whether you should be advised to seek separate representation – for example, where parties are making uneven contributions to the purchase or there is a suspicion of undue influence.
Different factors may need to be taken into account in commercial situations.
If you have a query or would like to book an appointment please get in touch with our First Contact Team on 01256 320555 or email: mail@clarkeandson.co.uk.
