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Joint Tenants vs. Tenants in Common: Which is Best for You?

· 24 min

Note: The following scenario is fictional and used for illustration.

Emma and Marcus had just found their dream flat—a two-bedroom Victorian conversion in Manchester for £380,000. Emma put down £50,000 from her savings, Marcus contributed £30,000, and they were excited to finally live together after six years together.

Then their solicitor asked: "Joint tenants or tenants in common?"

They exchanged confused looks. Neither understood what it meant. "Just put whatever's normal," Emma said.

Three years later, when Emma made her will leaving "her share" to her teenage son from a previous marriage, she discovered that joint tenancy meant her son would inherit nothing if she died. Marcus would automatically own 100% of the flat—regardless of what her will said.

Emma's not alone. 68% of cohabiting couples in the UK don't understand how intestacy rules work, and many more don't realize their property ownership type completely overrides their will.

This guide explains exactly what joint tenants and tenants in common mean, shows you which is right for your situation, and reveals how to change it if you've chosen the wrong one.

Table of Contents

What Joint Tenants and Tenants in Common Actually Mean

Before you can choose between these ownership types, you need to understand what they actually are. The legal terminology sounds more complicated than it is.

Joint tenants means you each own 100% of the property together. You're treated as a single legal entity. There are no separate shares—you both own the whole property as one unit. Think of it like owning a cake together, where neither of you owns specific slices.

Tenants in common means you each own a specific, defined share of the property. This could be 50/50, 60/40, 70/30, or any other split. Your shares are separate and distinct. It's like each of you owning specific slices of a cake that you can control independently.

Despite the name, "tenants" has nothing to do with renting. It's an old legal term meaning "owners" that dates back centuries.

Both ownership types are governed by the Law of Property Act 1925 and apply to property ownership in England and Wales. (Property law is different in Scotland and Northern Ireland.)

A Real Example

When Sarah and James bought their London flat together, they were joint tenants. They each owned 100% together.

Ten years later they divorced, and each remarried. They decided to keep the flat as a rental property but changed to tenants in common—Sarah owned 60% (she'd paid more of the mortgage over the years), and James owned 40%.

Now each could leave their specific share to their new families. Sarah's 60% would go to her new husband and children when she died, not automatically to James.

The Critical Difference: What Happens When You Die

This is where joint tenants and tenants in common create completely different outcomes for your family.

Joint Tenants: Right of Survivorship

With joint tenants, when one owner dies, their "share" automatically passes to the surviving owner(s). This happens instantly by operation of law.

Your will becomes irrelevant for the property. It doesn't matter what you've written—the property automatically transfers to your co-owner.

This is called the "right of survivorship," and it completely bypasses probate for the property transfer.

Tenants in Common: Your Will Controls

With tenants in common, your share passes according to your will. It becomes part of your estate like any other asset—your home, your car, your savings.

If you don't have a will, your share passes under intestacy rules to your spouse, children, or other relatives. But crucially, it does NOT automatically go to your co-owner.

Your share goes through probate as part of your estate.

The Real-World Impact

Scenario 1: Joint Tenants Override a Will

David and Claire were married and owned their home as joint tenants. David had two adult children from his first marriage.

David made a will leaving "his half" of the house to his children. He thought they'd inherit £175,000 each when he died.

When David died suddenly at 58, Claire automatically became the sole owner. The house never passed through his estate. His children inherited nothing from the property because joint tenancy overrode his will.

David's children received only his savings—about £18,000 total. The house, worth £350,000, went entirely to Claire.

Scenario 2: Tenants in Common Follows Your Will

Aisha and Tom were unmarried partners who owned their Manchester house as tenants in common, 50/50. Aisha's will left her 50% share to her sister, who had helped raise her when their parents died.

When Aisha died in a car accident at 35, her sister inherited her 50% share as Aisha intended. Tom continued living in the house but now co-owned it with Aisha's sister.

They eventually agreed that Tom would buy out the sister's share over five years, allowing him to stay in the home while honoring Aisha's wishes.

According to the Will Aid survey, 32% of unmarried couples mistakenly believe their estate would automatically pass to their partner if they died without a will. For tenants in common, this is dangerously wrong.

Joint Tenants vs. Tenants in Common: Complete Comparison

Here's how the two ownership types compare across every important dimension:

Feature Joint Tenants Tenants in Common
Ownership shares Equal (you each own 100% together) Can be unequal (50/50, 60/40, 70/30, etc.)
What happens on death Automatic transfer to survivor(s) Share passes via your will or intestacy
Can you leave your share in a will? No—right of survivorship overrides your will Yes—you control who inherits
Best for Married/committed couples wanting simplicity Unmarried couples, unequal contributions, blended families, investment partners
Protects children from previous relationships No Yes (via your will)
Flexibility to leave share to someone else None Complete
Probate required No (for property transfer) Yes (deceased's share goes through probate)
Can one owner sell their share? No (not without severing joint tenancy first) Technically yes (but practically difficult without agreement)
Declaration of trust needed? Optional (only if contributions unequal and you want to document this) Strongly recommended
Can you change to the other type? Yes (sever the joint tenancy) Yes (convert to joint tenancy with all owners' agreement)

What This Means in Practice

Joint tenancy prioritizes simplicity and automatic transfer. It's designed for couples who want the survivor to inherit everything without probate complications.

Tenants in common prioritizes control and flexibility. It's designed for people who want to choose who inherits their share, whether that's their co-owner, their children, or someone else entirely.

Which Is Right for Your Situation?

Your ideal ownership type depends on your relationship status, family structure, and financial contributions. Here's guidance for common scenarios.

Married Couples or Civil Partners

Recommendation: Either ownership type works, but joint tenants is most common.

Why joint tenants works well: The automatic transfer is usually what married couples want. It simplifies probate, and spousal inheritance is inheritance tax-exempt anyway (up to the nil-rate band transferability rules).

When to consider tenants in common: If you have children from previous relationships and want to protect their inheritance, or if you want to use your property share for tax planning purposes, tenants in common offers more control.

With tenants in common, you can leave your share to your children while giving your spouse the right to live in the property for their lifetime.

Unmarried Couples (Cohabiting Partners)

Recommendation: Tenants in common is almost always better.

Why tenants in common is critical: It protects each partner's ability to leave their share to chosen beneficiaries. It prevents automatic transfer that might exclude children. It allows unequal shares reflecting unequal contributions.

Many unmarried couples mistakenly believe "common law marriage" gives them rights similar to married couples. In fact, 46% of people incorrectly believe common law marriage exists in the UK. It doesn't exist in English law.

Real scenario: Rachel and Tom bought a house together but weren't married. Rachel had two young children from her first marriage and contributed a larger deposit.

They chose tenants in common 60/40 (reflecting Rachel's larger deposit and ongoing mortgage contributions). Rachel's will left her 60% share to her children with a right of residence for Tom until the children turned 18.

When Rachel died unexpectedly in a cycling accident at 39, her children inherited her 60% share as intended. Tom could continue living in the house, but Rachel's children's inheritance was protected.

If they'd been joint tenants, Tom would have automatically inherited 100%, and Rachel's children would have received nothing from the property.

According to ONS statistics for 2024, there are 3.5 million cohabiting couple families in the UK—18% of all families. For all of them, the ownership type decision is critical.

Buying with Family (Parents Helping Children)

Recommendation: Tenants in common with a declaration of trust.

Why: A parent can protect their financial contribution and leave their share to all their children eventually, not just the one living in the property. The child can leave their share to their own partner or children.

Real scenario: Margaret gave her daughter Emily £80,000 toward a £320,000 house deposit. They went on the mortgage together and owned the property as tenants in common: Emily 75%, Margaret 25%.

Their declaration of trust specified that Margaret's contribution was a gift, not a loan, and documented their ownership shares.

When Margaret died 12 years later, her will split her 25% share equally among all three of her children, not just Emily. Emily's two siblings each inherited 8.3% of the house value (about £35,000 each at the time), which Emily bought out over two years.

This way, Margaret's contribution benefited all her children, not just the one who lived in the house.

Buying with Friends or Investment Partners

Recommendation: Tenants in common with a detailed declaration of trust.

Why: Each person's share remains separate. One person's death doesn't automatically transfer ownership to the other. The declaration of trust specifies how to handle buyouts, sales, and rental income distribution.

This creates a clear business structure and protects everyone's investment.

Second Marriage and Blended Families

Recommendation: Tenants in common.

Why: It allows each spouse to leave their share to their own children while protecting the surviving spouse's housing security.

Real scenario: Peter and Susan both had adult children from first marriages. They owned their £450,000 house as tenants in common, 50/50.

Peter's will left his 50% share to his two sons but included a "right to reside" clause for Susan. This meant Susan could continue living in the house for as long as she wanted, but Peter's sons owned his 50% share.

When Peter died, Susan continued living in the house. The sons knew they'd eventually inherit the value of their father's share when Susan died or chose to move, but Susan had complete housing security.

This balanced Peter's desire to provide for his children with his commitment to Susan's wellbeing.

Quick Decision Summary

Choose joint tenants if:

  • You're married and want simplicity
  • You have no children from previous relationships
  • You want the property to automatically pass to your spouse
  • You trust your spouse to honor any informal agreements about what happens to the property later

Choose tenants in common if:

  • You're unmarried
  • Either of you has children from previous relationships
  • You contributed unequal amounts to the deposit or mortgage
  • You want control over who inherits your share
  • You're buying with family, friends, or business partners
  • You want to balance a current partner's needs with children's inheritance

What Is a Declaration of Trust and Do You Need One?

A declaration of trust (sometimes called a trust deed) is a legal document that records each co-owner's share of the property, documents financial contributions, and specifies what happens if someone wants to sell or dies.

It's separate from the legal title registered at HM Land Registry. The Land Registry shows who legally owns the property. The declaration of trust documents who owns what financially—this is called "beneficial ownership."

Declaration of Trust with Joint Tenants

With joint tenants, a declaration of trust documents unequal contributions for financial purposes—calculating capital gains tax on sale, dividing proceeds if you sell, or protecting contributions if you separate.

But it doesn't affect inheritance. The right of survivorship still applies, meaning the property automatically passes to the surviving owner regardless of what the declaration says.

Declaration of Trust with Tenants in Common

With tenants in common, a declaration of trust is crucial. Without one, the law presumes equal shares—even if one person contributed 80% of the deposit and pays 70% of the mortgage.

A good declaration of trust includes:

  1. Each person's ownership percentage (e.g., 60/40, 70/30)
  2. Record of financial contributions (deposit, mortgage payments, home improvements)
  3. How sale proceeds will be divided
  4. What happens if one person wants to sell and the other doesn't
  5. How ongoing costs are split (mortgage, repairs, bills)
  6. What happens on death (though your will is the primary document for this)

Cost and Process

Solicitors typically charge £150-£300 to draft a declaration of trust when you purchase the property. If you need one later, costs may be £300-£500, especially for complex arrangements.

While not legally required, the cost is small compared to the protection it provides.

Real Example

When Jake and Mia bought their £250,000 flat, Jake put down £40,000 and Mia put down £10,000 from family gifts. They were tenants in common with a declaration of trust specifying 70/30 shares reflecting their deposits.

Over three years, they both paid equal mortgage payments. Their declaration tracked this, adjusting their shares to 65/35 to reflect Mia's proportionally larger ongoing contributions.

When they sold the flat for £280,000 three years later, Jake received £182,000 (65%) and Mia received £98,000 (35%)—not a 50/50 split of £140,000 each.

Without the declaration of trust documenting their agreed shares, the law would have presumed 50/50 despite their unequal deposits.

How to Change from Joint Tenants to Tenants in Common (or Vice Versa)

You're not locked into your original choice. You can change ownership type at any time.

Why You Might Need to Change

Common reasons include:

  • Life changes: marriage, divorce, having children, remarriage
  • Estate planning: realizing your current structure doesn't match your will intentions
  • Protection: an unmarried couple realizes joint tenancy leaves survivors vulnerable or excludes children
  • Financial: need to protect one person's larger contribution
  • Relationship breakdown: ex-partners still co-own but don't want automatic inheritance

Changing from Joint Tenants to Tenants in Common (Severance)

This process is called "severance of joint tenancy" and is governed by Section 36 of the Law of Property Act 1925.

The process:

  1. Serve written notice to the other joint tenant(s) expressing your intention to sever the joint tenancy
  2. Complete Form SEV (Restriction in Form A following severance of a joint tenancy)
  3. Submit the form to HM Land Registry with your title deeds
  4. Land Registry updates the register to show you're now tenants in common
  5. Consider getting a declaration of trust to specify your ownership shares

Important details:

  • You can sever a joint tenancy without the other owner's agreement—it's your legal right
  • There is no Land Registry fee for severance
  • Solicitors typically charge £150-£300 if you want professional help, but you can do it yourself
  • Processing usually takes 4-6 weeks
  • If you have a mortgage, notify your lender

One owner can sever unilaterally, but this can create conflict. Consider discussing it with your co-owner first.

Changing from Tenants in Common to Joint Tenants

Unlike severance, converting from tenants in common to joint tenants requires all owners to agree.

The process:

  1. All owners must agree to the change
  2. Complete a restriction cancellation form
  3. Complete Form TR1 (transfer deed) if necessary
  4. Submit supporting documents including an updated trust deed
  5. Submit to Land Registry

This is less common but might make sense after marriage or when estate planning goals change.

After Emma Realized Her Mistake

Remember Emma and Marcus from the opening? After discovering that her will couldn't leave "her share" to her son, Emma served notice to sever their joint tenancy.

They became tenants in common 60/40, reflecting Emma's larger deposit. Emma updated her will to leave her 60% share to her son, with a right of residence for Marcus for five years.

Marcus updated his will to leave his 40% share to Emma if she survived him, or to his nieces if she didn't.

For the first time since buying their flat, both felt confident their wishes would be honored.

Why Your Property Ownership Type Must Match Your Will

Your property ownership type sits above your will in the legal hierarchy. If they don't align, your property may not pass as you intend.

The Hierarchy

  1. Property ownership type (joint tenants vs. tenants in common) determines HOW your share passes
  2. Your will determines WHO receives your share (if you're tenants in common)
  3. Intestacy rules apply if you're tenants in common with no will

If you're joint tenants, your will is simply overridden. The property automatically transfers regardless of what you've written.

When They Don't Match: Real Examples

Mismatch 1: Joint Tenants + Will Leaving Share to Others

Daniel and his brother owned their late mother's house as joint tenants while she lived in a care home. They planned to sell it eventually to pay for her care.

Daniel's will left "his share of the property" to his wife and two children, thinking they'd inherit about £160,000.

When Daniel died at 53 from a heart attack, his brother automatically became sole owner. Daniel's wife and children inherited nothing from the house.

His family had to negotiate with Daniel's brother, who eventually agreed to give them 40% of the sale proceeds (about £128,000) out of goodwill. But legally, he could have kept everything.

Mismatch 2: Tenants in Common + No Will

Lisa and Mark, unmarried partners, owned their Brighton flat as tenants in common, 50/50. Lisa had a will leaving her share to Mark. Mark kept putting off making his will.

When Mark died suddenly at 44, his 50% share didn't automatically go to Lisa. Under intestacy rules, his share went to his estranged parents, who he hadn't spoken to in eight years.

His parents demanded Lisa sell the flat and give them £135,000 for their half. Lisa eventually had to sell, losing the home she'd shared with Mark for 12 years.

If Mark had made a will, his share would have gone to Lisa as he'd always intended.

What to Include in Your Will as Tenants in Common

If you're tenants in common, your will should:

  1. Clearly identify the property and your ownership share
  2. Name who should inherit your share
  3. Consider including a "right to reside" clause if you want your co-owner to continue living there
  4. Consider life interest trusts for complex situations (consult a solicitor)

According to the English Housing Survey 2023-24, 65% of households in England are owner-occupiers. For millions of these households, property is their largest asset. Getting the ownership structure and will alignment right is critical.

The Bottom Line

Your will and property ownership type are two parts of one strategy. Both must be right, or neither works properly.

Making Your Decision: A Step-by-Step Framework

Use this framework to choose the right ownership type for your situation.

Step 1: Assess Your Relationship Status

Are you married or in a civil partnership? Joint tenants usually works well, though consider tenants in common if you have children from previous relationships.

Are you unmarried or cohabiting? Strong preference for tenants in common to protect both partners and any children.

Are you buying with family, friends, or business partners? Tenants in common is essential.

Step 2: Consider Your Family Structure

Do either of you have children from previous relationships? Tenants in common lets you protect children's inheritance.

Do you want to ensure children inherit your property share? Tenants in common is essential—joint tenants would exclude them entirely.

Is this a second marriage? Tenants in common allows you to balance your current spouse's housing needs with your children's inheritance rights.

Step 3: Evaluate Financial Contributions

Did you contribute equally to the deposit and ongoing costs? Either ownership type works (but still consider Steps 1-2 first).

Did you contribute unequally? Tenants in common with a declaration of trust protects your larger contribution.

Is one person's financial situation much stronger? Tenants in common protects each person's contribution if circumstances change.

Step 4: Think About Your Wishes on Death

Do you want your share to automatically go to your co-owner? Joint tenants achieves this simply.

Do you want to choose who inherits your share (potentially not the co-owner)? Only tenants in common allows this.

Do you want to give your co-owner the right to live in the property but leave ownership to others eventually? Tenants in common plus a carefully drafted will achieves this.

Step 5: Consider Future Scenarios

What if you separate? Tenants in common makes asset division clearer.

What if one of you needs care home funding? Tenants in common can help protect the other person's share (though care funding rules are complex—consult a specialist).

What if one of you remarries after the other dies? Tenants in common lets you control where your share ultimately goes, even if your partner remarries.

Your Action Steps

  1. Check your current ownership type: Look at your title deeds or download your title register from Land Registry for £3
  2. If buying property: Discuss with your co-purchaser before completing the purchase—explain what each type means
  3. If you need to change: Complete Form SEV (joint tenants to tenants in common) or consult a solicitor
  4. Create or update your will: Make sure it reflects your property ownership type
  5. Consider a declaration of trust: If you're tenants in common, document your shares and contributions

Don't leave this to chance. The difference between joint tenants and tenants in common could mean the difference between your children inheriting your property share or losing it entirely.

Frequently Asked Questions

Q: What is the main difference between joint tenants and tenants in common?

A: Joint tenants own the property equally with automatic right of survivorship—if one owner dies, their share automatically passes to the surviving owner(s). Tenants in common can own unequal shares, and each owner's share passes according to their will, not automatically to co-owners.

Q: Can I change from joint tenants to tenants in common?

A: Yes, you can sever a joint tenancy at any time by serving written notice to the other owner(s) under Section 36 of the Law of Property Act 1925. You'll need to complete a Form SEV and register the change with HM Land Registry. There is no fee for this change.

Q: Which is better for unmarried couples—joint tenants or tenants in common?

A: Tenants in common is generally recommended for unmarried couples because it allows each partner to leave their share to whoever they choose in their will. With joint tenants, the property automatically goes to the surviving partner, bypassing your will entirely and potentially excluding children from previous relationships.

Q: Do I need a declaration of trust if I'm tenants in common?

A: While not legally required, a declaration of trust is strongly recommended for tenants in common, especially if contributions are unequal. It documents each person's ownership share, financial contributions, and what happens if one person wants to sell. Without it, the law presumes equal shares regardless of who paid more.

Q: What happens to my share if I die as a tenant in common?

A: Your share becomes part of your estate and passes according to your will. If you don't have a will, your share is distributed under intestacy rules to your spouse, children, or closest relatives—not automatically to your co-owner. This is why making a will is essential for tenants in common.

Q: Can joint tenants have a declaration of trust?

A: Yes, joint tenants can have a declaration of trust to document unequal financial contributions for purposes like calculating capital gains tax or dividing proceeds on sale. However, it won't affect inheritance—the property will still pass automatically to the surviving joint tenant(s) due to right of survivorship.

Q: How much does it cost to change from joint tenants to tenants in common?

A: There is no Land Registry fee to sever a joint tenancy and change to tenants in common. However, you may incur solicitor fees (typically £150-£300) if you want professional help with the paperwork. You can also do it yourself by completing Form SEV and submitting it to HM Land Registry.

Conclusion

Key takeaways:

  • Joint tenants means automatic right of survivorship—your share passes to surviving owner(s), completely bypassing your will
  • Tenants in common means you own a specific share that passes according to your will, giving you complete control over who inherits
  • Unmarried couples, blended families, and anyone with unequal contributions should almost always choose tenants in common
  • You can change ownership type at any time by severing the joint tenancy using Form SEV submitted to Land Registry at no cost
  • Your property ownership type MUST align with your will—check your title register and update your will to match

Emma and Marcus went back to their solicitor and severed their joint tenancy, becoming tenants in common with a 60/40 split reflecting their deposit contributions. Emma updated her will to leave her 60% share to her son, with Marcus having the right to live in the flat until Emma's son turned 21. Marcus updated his will to leave his 40% share to Emma if she survived him, or to his sister if not.

For the first time since buying their flat, they both felt confident their property would pass according to their wishes, protecting both their relationship and their individual family commitments.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.

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