Severing joint tenancies – don’t get caught out
There are two ways to hold property in the UK, as Joint Tenants or Tenants in Common. Whilst the legal title must always be held as Joint Tenants, the beneficial interest in a property can be held in one of two ways:-
• Joint Tenants – the parties own indistinct shares in the land. The right of survivorship applies to joint tenancy, which means that any provision in a Will passing the land to a person other than the other Joint Tenant will be ineffective. As a Joint Tenant, on death your ‘share’ will automatically pass to the other party, irrespective of what is in your Will
• Tenants in Common – unlike with joint tenancies, the parties have distinct, identifiable shares in the land and can expressly state the percentage they individually own. Unlike joint tenancies, where the right of survivorship applies, as Tenants in Common you can leave your distinct share in the land to another party in your Will
As matrimonial lawyers we frequently encounter situations where clients hold their property as Joint Tenants, however, given their impending separation would like to sever the joint tenancy so they have a distinct, identifiable share.
Whilst the process of severing a joint tenancy is fairly straightforward, care needs to be taken to ensure that it severance is completed fully. A potential pitfall one might come across is where a party owns both a leasehold title and a share of the freehold title. This may occur where a large house has been split into flats and the owners of the individual flats also own a share of the land. In this instance, it will be important to ensure that the joint tenancy has been severed on not just the flat (leasehold title) owned by the separating couple, but also the share of the land (freehold title) owned by the separating couple.
The fact that parties are separating is not in itself a reason to sever a joint tenancy and every case will be different. If you would like further information or advice on a specific matter, please do not hesitate to contact a member of the Family Team.