Joint tenancy and tenancy in common

Joint tenancy

This is a form of co-ownership in which the following principles apply:

• There are no shares. In theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues. This means that the joint tenants must have equal interest in the property, and are entitled equally to its rents and profits. There can be two or more joint tenants.
• The principle of "survivorship" applies. On the death of one joint tenant the surviving joint tenant gets the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This gives considerable protection to a joint tenant.
  It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed. A grant is required if the estate contains land - but this does not include property held in joint tenancy, as it does not form part of the estate. The property passes automatically, by operation of law, to the survivor or survivors without forming part of the estate of the one who dies first. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant. Further, a joint tenant cannot in his or her will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator.
• The principle of joint tenancy applies to real as well as personal property - it applies to land as well as to furniture and bank accounts.
• Joint tenancy is usual in marriage where the spouses want to hold the property equally, and also want the principle of survivorship to apply. It is not common in other situations. In particular, it would not usually be appropriate to register a house in joint names where one partner to a marriage buys the house using only his or her own money or has contributed much more to the house than the other partner.
• You can sever the joint tenancy. To do so you should consult a solicitor.

Tenancy in common

A form of co-ownership in which property is held in common with others but where, in contrast with joint tenants, the share of a deceased tenant in common passes to his or her beneficiaries under his or her will or intestacy and does not automatically pass to the surviving tenant or tenants in common.

• Tenants in common have fixed, undivided shares in the property. Tenants in common can have unequal shares (for example, two-thirds to one and one-third to the other).
• The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies; that is, a testator who is a tenant in common can leave his or her share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common.
• Tenancy in common is frequent in property shared between partners, and, say, in a gift to a testator's children. It is infrequent between husband and wife. However, where there are children of a previous relationship or where the parties have contributed unequally to the asset concerned it is appropriate for a husband and wife to own property as tenants in common - they can leave their shares to their own children, and they can own unequal shares in the property to reflect their respective contributions to the property.