Severing a Joint Tenancy

There are only two ways in which people can own land together. Land can be held jointly either as beneficial joint tenants or as tenants in common. Neither have anything to do with tenancies as in renting property. They are just legal terms describing how land is held.

Beneficial joint tenants

when is a credit uneforceableOwning property as beneficial joint tenants means the property belongs to you and the other owner or owners jointly. You must all act together as a single owner, for example on a remortgage or a sale. You do not own specific shares in the property and you cannot give away a share of the property in a will. If you die, your interest in the property passes automatically to the other owner or owners.

A beneficial joint tenancy ends when either:

• the whole property is transferred to one owner;
• the tenancy is converted into a tenancy in common, whether voluntarily by serving a notice of severance or involuntarily, for example if one of the owners becomes bankrupt;
• the property is sold to someone else; or
• one owner outlives all the others.

The important thing to remember therefore is that the consequence of holding property as a joint tenant is that the shares in the property are indivisible. The result of this is that if one joint owner dies, that share of the deceased in the property will pass automatically to the survivor under what is known as the right survivorship. It will not pass according to the will of the deceased or the law of intestacy.

That may often not be what is intended, especially when the relationship between two joint owners breaks down. It is most usual for husband-and-wife, who buy property together to hold the property as beneficial joint tenants. However, if the marriage breaks down, it is usual and most sensible to sever the joint tenancy.

Tenants in common

With tenants in common, each joint owner has a divisible share in the property which may or may not be equal. On the death of one of the joint tenants, his or her share will not pass automatically to the survivor but will pass according to the terms of the deceased’s will or the law of intestacy. This way of holding property jointly is most usual where the shares held are not equal or where the relationship between the parties is not as husband and wife.

Owning property as tenants in common means the property belongs to you jointly, but you also own a specific share of its value. You can give away, sell or mortgage your share. If you die, your share of the property passes to the beneficiary in your will. This type of ownership is reflected by an entry on the register for the property known as a Form A restriction.

‘No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.’

The effect of this restriction is that if you are the last survivor of all the owners, you must appoint another person to act with you in any deed of sale or mortgage and to jointly receive any sale price or mortgage advance.

A tenancy in common ends when either:

• you all sell the property (with all the shares) to someone else;
• you all convert to a beneficial joint tenancy; or
• one owner acquires all the shares in the property.

A tenancy in common does not automatically end when all the original owners have died. It will continue unless one person has become the owner of all the shares or the property is sold. The law makes provision about who can become the registered owner or who can sell the property when this happens. Your conveyancer will advise you.

A joint tenancy is converted into a tenancy in common by one owner serving notice of severance upon the other joint owner. Proof of service is desirable, either by the obtaining the other owners signature on a duplicate copy of the notice, personal service, or by a sending by the notice by registered post.

Unless stated otherwise, it will be presumed that the new tenancy in common created will be in equal shares. It is not possible for the person receiving notice of severance to oppose the severance, as this will happen automatically on service of the notice. Once served, the Land Registry should be advised in writing and a copy of the notice of severance sent to them in order that they might amend the entry in the Registry. This should be done on Land Registry Form SEV1.

If you are uncertain whether you are a joint tenant or tenant in common, a search can be carried out against your property at the Land Registry.

The Proprietorship Register will show the names of the people that own the property and, if you are tenants in common, will also have the wording ‘No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court‘. If there is no such wording in the title document, then you are almost certainly joint tenants.

Notice of severance of a joint tenancy

From: [name of person giving notice]
To: [the other joint tenant]
Re: [Property-address and Land Registry number] (the property)

I hereby give you notice that from today the rule of survivorship is not to apply to the above property, and that it is now owned between us as beneficial Tenants in Common.
Accordingly, I give you notice of my desire to sever as from this day the joint tenancy in equity of and in the above property (‘the property’) now held by you and me as joint tenants both in law and in equity so that the property shall from the date of this notice belong to you and me as Tenants in Common in equal shares

Please acknowledge receipt of this notice by signing and returning the enclosed copy of this letter.

I acknowledge receipt of the original notice of which this is a copy.

Form RX1 should be used for the application to sever in other circumstances.


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