Joint Tenancy vs Tenants in Common

When two or more people buy a property together, one of the most important decisions they need to make is how they will own the property.

In England and Wales, property can generally be held as:

• Joint tenants, or

Tenants in common

Understanding the difference between joint tenancy and tenancy in common is essential for couples, family members, friends and business partners buying property together.

The type of ownership you choose can affect:

• What happens when one owner dies

• Whether you can leave your share of the property in your Will

• How the property is sold

• How ownership is recorded at HM Land Registry

• Whether a Form A restriction appears on the title

• What happens if one owner becomes bankrupt

• How beneficial interests are treated

This guide explains what a joint tenancy is, what tenants in common are, what a Form A restriction means and the key differences between joint tenants and tenants in common.

What Is a Joint Tenancy?

A joint tenancy is a form of co-ownership where two or more people own a property together as a single unified ownership.

The owners do not normally have individually identifiable shares in the property.

Instead, each joint tenant is entitled to the whole property together with the other joint tenants.

One of the most important features of a joint tenancy is the right of survivorship.

This means that when one joint tenant dies, their interest generally passes automatically to the surviving joint tenant or joint tenants.

It does not normally pass under the deceased person’s Will.

For example:

John and Sarah own their home as joint tenants. John dies. Sarah becomes entitled to the property by survivorship.

This is one of the biggest differences between joint tenants and tenants in common.

What Is Tenancy in Common?

A tenancy in common is another form of co-ownership.

Unlike joint tenants, tenants in common can own separate beneficial shares in a property.

For example:

• Two owners could own 50% each.

• One owner could own 60% and another 40%.

• Three owners could own 50%, 25% and 25%.

The shares do not necessarily have to be equal.

This can be particularly useful where people contribute different amounts towards the purchase price or want their individual share to pass to their estate when they die.

Joint Tenants vs Tenants in Common

The simplest way to understand the difference is:

Joint Tenants

The owners own the property together as a whole and the right of survivorship applies.

Tenants in Common

Each owner has a separate beneficial share, which can generally be left under their Will.

This distinction is extremely important when purchasing a property with another person.

Joint Tenancy vs Tenancy in Common Comparison

The exact legal and beneficial ownership position can depend on the circumstances and any declaration of trust.

What Is the Right of Survivorship?

The right of survivorship is one of the key characteristics of a joint tenancy.

If one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant or joint tenants.

For example:

Example 1 – Joint Tenants

David and Emma own a property as joint tenants.

David dies.

Emma survives him.

Because they were joint tenants, David’s interest does not normally pass under his Will. Instead, the right of survivorship means Emma becomes entitled to the property.

This can be particularly relevant when estate planning.

Does a Joint Tenant Need to Leave Their Property to Their Spouse in Their Will?

Not necessarily.

If the property is owned as joint tenants, the right of survivorship generally means the deceased person’s interest passes automatically to the surviving owner.

Therefore, the Will does not normally determine who receives the deceased person’s interest in the jointly owned property.

However, this does not mean that a Will is unnecessary.

A person’s other assets may still need to be dealt with under their Will.

What Happens When a Tenant in Common Dies?

The position is different for tenants in common.

Suppose:

David and Emma own a property as tenants in common, 50% each.

David dies.

David’s 50% beneficial interest does not automatically pass to Emma simply because she is the other owner.

Instead, David’s share generally forms part of his estate and can pass according to his Will, subject to the applicable law.

If David’s Will leaves his property interest to his children, for example, his beneficial interest may pass to them.

This is one of the main reasons people choose tenants in common rather than joint tenancy.

Why Choose Tenants in Common?

There are many reasons why property owners may choose to hold a property as tenants in common.

For example:

Different Financial Contributions

One person may contribute more towards the purchase price.

Investment Property

Business partners or investors may want defined ownership percentages.

Estate Planning

An owner may want their share to pass to children or other beneficiaries rather than automatically passing to the surviving co-owner.

Second Marriages and Blended Families

Someone may want their share of a property to form part of their estate rather than automatically passing to their spouse or partner.

Declaration of Trust

The owners may want to record their individual beneficial shares and responsibilities in a formal declaration of trust.

What Is a Form A Restriction?

If property is owned by tenants in common, you will often see a Form A restriction registered against the property title at HM Land Registry.

A Form A restriction is a type of restriction entered on the register that relates to a trust of land.

It is important to understand that a Form A restriction does not mean that you cannot sell the property.

Instead, it is designed to ensure that certain requirements are met when the registered proprietors deal with the property.

HM Land Registry explains that a Form A restriction is used where there is a trust of land and there is a restriction on dispositions by a sole surviving proprietor. (gov.uk)

What Does a Form A Restriction Say?

A Form A restriction essentially prevents a sole surviving registered proprietor from giving a valid receipt for capital money arising from a disposition unless the relevant requirements are satisfied.

In practical terms, this is particularly important where:

• Two people own a property as tenants in common.

• One owner dies.

• The surviving owner becomes the sole registered proprietor.

The Form A restriction remains relevant because the surviving owner may be holding the property on trust for themselves and the deceased owner’s estate or beneficiaries.

The restriction helps protect the underlying beneficial interests.

Why Is a Form A Restriction Important?

Imagine:

John and Sarah own a property as tenants in common, 50% each.

John dies.

Sarah becomes the sole registered proprietor at HM Land Registry.

However, Sarah does not necessarily become the sole beneficial owner.

John’s 50% beneficial interest may still belong to his estate or beneficiaries.

The Form A restriction provides an important protection because Sarah cannot simply deal with the property as though she were the sole beneficial owner in every respect.

If the property is sold, the transaction may involve two trustees or a trust corporation so that the beneficial interests can be dealt with appropriately.

Does a Form A Restriction Mean You Cannot Sell the Property?

No.

This is a common misunderstanding.

A Form A restriction does not prevent the property from being sold.

Instead, it affects how the sale must be completed.

Where there is a Form A restriction, the buyer’s solicitor and the seller’s solicitor will need to ensure the transaction satisfies the relevant trust and Land Registry requirements.

In many cases, this involves appointing a second trustee so that the purchase money can be paid to two trustees.

This process is often referred to as overreaching.

What Is Overreaching?

Overreaching is a legal mechanism that can transfer beneficial interests in land from the property itself to the sale proceeds.

In simple terms:

The beneficiaries’ interests move from the property to the money received from the sale.

This is why a Form A restriction can be important when a property owned by tenants in common is sold.

For a conveyancing transaction involving a Form A restriction, the legal requirements need to be satisfied correctly.

Example of a Form A Restriction

Let’s consider a simple example.

Before Death

John and Sarah own a house as tenants in common.

They each own 50%.

The Land Registry title contains a Form A restriction.

John Dies

John dies and leaves his 50% beneficial interest to his children under his Will.

Sarah becomes the sole registered proprietor.

However, John’s beneficial interest does not simply disappear.

Sarah may now hold the property on trust in relation to John’s beneficial share.

Property Is Sold

Sarah wants to sell the property.

Because of the Form A restriction, the conveyancing process needs to ensure the trust requirements are properly dealt with.

A second trustee may be appointed so that the sale can proceed and the beneficial interests can be overreached.

The Form A restriction therefore plays an important role in protecting the underlying beneficial ownership.

Does a Form A Restriction Prove You Own 50%?

No.

A Form A restriction does not itself tell you what percentage each owner owns.

This is an important distinction.

The restriction indicates that there is a trust arrangement affecting the property.

It does not necessarily state:

“John owns 50% and Sarah owns 50%.”

The actual beneficial shares may be established by:

• A declaration of trust

• Trust deed

• Conveyancing documents

• Other evidence

• The circumstances in which the property was acquired

If the beneficial ownership is disputed, specialist legal advice may be required.

How Is a Form A Restriction Registered?

When property is held as tenants in common, the relevant restriction is generally entered on the Land Register.

A Form A restriction is commonly worded along the lines that no disposition by a sole registered proprietor is to be registered unless authorised by the restriction.

The exact wording appearing on a title should always be checked against the registered title.

HM Land Registry provides guidance on restrictions and the registration of dispositions involving trusts of land. (gov.uk)

Can You Remove a Form A Restriction?

A Form A restriction can potentially be cancelled, withdrawn or altered in certain circumstances, but the appropriate procedure depends on why it was entered and the current ownership position.

For example, if beneficial ownership changes or the trust comes to an end, there may be circumstances where the restriction is no longer required.

However, removing a Form A restriction should not be treated as a simple administrative exercise.

The underlying beneficial ownership needs to be considered.

HM Land Registry provides specific procedures concerning applications to cancel or withdraw restrictions. (gov.uk)

Can You Change From Joint Tenants to Tenants in Common?

Yes.

This process is known as severing a joint tenancy.

Severance converts the beneficial ownership from a joint tenancy into a tenancy in common.

Once severed, the owners have separate beneficial shares.

This can be particularly important for estate planning.

For example:

A married couple own their home as joint tenants. One spouse wants their share to pass to their children rather than automatically to the surviving spouse.

They may consider severing the joint tenancy so that they hold the property as tenants in common.

The legal process should be handled carefully, particularly where there is a mortgage or other legal interest in the property.

What Happens When a Joint Tenancy Is Severed?

Once a joint tenancy has been properly severed, the right of survivorship is removed in relation to the severed interest.

The owners then hold their beneficial interests as tenants in common.

For example:

Before severance:

John + Sarah = Joint Tenants

After severance:

John = 50%
Sarah = 50%

The actual shares can depend on the circumstances and any existing agreement or declaration of trust.

A Form A restriction may then be registered against the title to reflect the trust arrangement.

Why Do People Sever a Joint Tenancy?

Common reasons include:

Estate Planning

To ensure a person’s beneficial share can pass under their Will.

Inheritance Planning

To provide for children or other beneficiaries.

Relationship Breakdown

Severance may be considered when a relationship is ending.

Financial Planning

Owners may want their respective beneficial interests clearly separated.

Protecting Beneficial Shares

Where owners want to establish or document distinct beneficial interests.

Severing a joint tenancy is an important legal step and should not be undertaken without understanding the consequences.

Joint Tenancy and Tenancy in Common: Which Is Better?

There is no universally “better” option.

The appropriate choice depends on your circumstances.

Joint Tenancy May Suit You If:

• You want the right of survivorship.

• You want the property to pass automatically to the surviving owner.

• You and the other owner consider yourselves to own the property equally.

• Estate planning does not require separate beneficial shares.

Tenants in Common May Suit You If:

• You want separate beneficial shares.

• You want unequal ownership percentages.

• You want your share to pass under your Will.

• You have different financial contributions.

• You want to protect an individual beneficial interest.

A solicitor or qualified conveyancer can explain the implications for your circumstances.

Joint Tenancy vs Tenants in Common for Married Couples

Married couples often choose joint tenancy, but this is not automatically the best option.

A couple may instead choose tenants in common for estate planning reasons.

For example, if one spouse wants their share to ultimately benefit their children from a previous relationship, holding the property as tenants in common may provide a different estate-planning structure.

However, inheritance tax, trusts, mortgages and individual circumstances can significantly affect the outcome.

Professional estate-planning advice can therefore be important.

Joint Tenancy vs Tenants in Common for Unmarried Couples

Unmarried couples may particularly benefit from understanding the difference between the two forms of ownership.

If an unmarried couple owns a property as joint tenants, the right of survivorship generally means that the surviving owner becomes entitled to the deceased owner’s interest.

If they own as tenants in common, each person’s share can generally be dealt with under their Will.

This can make a significant difference to estate planning.

Joint Tenancy vs Tenants in Common and the Mortgage

The way a property is owned is separate from the question of who is responsible for a mortgage.

For example, two people can own a property together and both be borrowers under a mortgage.

Changing from joint tenants to tenants in common does not automatically change the mortgage arrangements.

If you are considering changing the ownership structure, you should speak to your mortgage lender and obtain appropriate legal advice.

Joint Tenancy, Tenants in Common and Form A Restriction: The Simple Explanation

If you remember only three things from this article, remember these:

1. Joint Tenancy

You own the property together and the right of survivorship applies.

2. Tenancy in Common

You have a separate beneficial share that can generally pass through your estate.

3. Form A Restriction

A Form A restriction is commonly registered where property is held on trust with separate beneficial interests and helps regulate how the property can be dealt with by a sole surviving registered proprietor.

Final Thoughts: Joint Tenants vs Tenants in Common

Choosing between joint tenants and tenants in common is an important property ownership decision.

For some people, a joint tenancy provides a straightforward arrangement where the property passes automatically to the surviving owner.

For others, tenancy in common provides greater flexibility because each owner can have a separate beneficial share and can generally decide who should inherit that share through their Will.

Where property is held as tenants in common, a Form A restriction is commonly found on the HM Land Registry title. This does not mean the property cannot be sold. Instead, it helps regulate dealings with the property where there are separate beneficial interests.

The choice between joint tenancy and tenancy in common can have significant consequences for inheritance, estate planning, relationship breakdown, property sales and beneficial ownership.

If you are buying a property with another person, changing your ownership structure or dealing with a Form A restriction, it is worth getting professional legal advice before making a decision.

The way you own your property today can determine what happens to your share tomorrow.

This article is intended for general information only and does not constitute legal, financial, tax or estate-planning advice. The legal and tax consequences of property ownership depend on individual circumstances. Consider obtaining independent professional advice before changing the way a property is owned.

Official Guidance

For further information, see HM Land Registry’s guidance on restrictions and prohibitions and GOV.UK guidance on leasehold and property ownership.