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Severance of Tenancy

Also known as: Severing Joint Tenancy, Tenancy Severance

Definition

Severance of tenancy is the legal process of changing property ownership from joint tenants (where the survivor inherits automatically) to tenants in common (where each owner can leave their share in their will).

This process is essential for estate planning because the right of survivorship in joint tenancy overrides your will, potentially preventing you from leaving your property share to your intended beneficiaries.

What Does Severance of Tenancy Mean?

Severance of tenancy converts how you own property with someone else—from joint tenancy to tenants in common. When you own property as joint tenants, the "right of survivorship" means your share automatically passes to the surviving owner when you die, regardless of what your will says. This can prevent you from leaving your property share to your children, other family members, or anyone other than your co-owner. Under Section 36(2) of the Law of Property Act 1925, you can sever a joint tenancy unilaterally—without your co-owner's permission—by serving written notice.

The severance process is straightforward. You draft a written notice stating your intention to sever the joint tenancy and serve it on all other joint tenants (typically by registered post). Then you complete Form SEV (available free from GOV.UK) and submit it to HM Land Registry's Citizen Centre. There's no fee for this process. Legally, the severance takes effect when your written notice is served, not when Form SEV is registered—the form simply updates the Land Registry's records to reflect a change that has already occurred.

Sarah and David own their £380,000 home as joint tenants. Sarah has two adult daughters from her first marriage and wants to ensure they inherit her share of the property. She serves David with written notice of severance and completes Form SEV. Now as tenants in common (50/50), Sarah can leave her £190,000 share to her daughters in her will, rather than it automatically passing to David. If Sarah dies before David, her daughters will inherit her half of the property and become co-owners with David as tenants in common.

Severance is essential whenever you want your property share to pass according to your will rather than automatically to the surviving owner. This is particularly important for blended families where you want to protect children from previous relationships, for trust planning (like life interest trusts to protect assets from care fees), during separation or divorce, and for tax efficiency on rental properties. It's crucial to understand that severance doesn't change how much you own—if you owned 50% as joint tenants, you still own 50% as tenants in common. What changes is control: after severance, your 50% share can be left to anyone you choose in your will. Severance also doesn't affect mortgage obligations—all joint owners remain fully liable for the mortgage debt regardless of ownership structure.

Common Questions

"Can I sever a joint tenancy without my partner's permission?" Yes, you can sever a joint tenancy unilaterally without the other owner's consent under Section 36(2) of the Law of Property Act 1925. You simply need to serve written notice on the other joint tenant(s), complete Form SEV, and register the change with HM Land Registry. There's no fee for this process. However, where possible, it's often better to discuss estate planning decisions with co-owners to avoid misunderstandings.

"Does severing a tenancy change how much of the property I own?" No, severance doesn't change the percentage you own—it changes how ownership is structured. If you owned property 50/50 as joint tenants, you'll still own 50/50 as tenants in common. The key difference is that your share can now be left to someone in your will rather than automatically passing to the surviving joint owner.

"When should I consider severing a joint tenancy for estate planning?" Consider severance if you want your share of the property to go to someone other than the joint owner (like children from a previous relationship), if you're setting up trusts in your will, during separation or divorce, or for tax planning purposes. Severance is essential because the right of survivorship overrides anything in your will.

Common Misconceptions

Myth: Severing a joint tenancy changes the percentage of the property I own

Reality: Severance changes the nature of ownership, not the amount you own. Unless you and the other owner(s) specifically agree otherwise, severance simply converts your existing ownership percentage into a defined share. If you owned the property 50/50 as joint tenants, you'll own it 50/50 as tenants in common after severance. The critical difference is that you can now leave your 50% share in your will, whereas before it would have automatically passed to the surviving joint owner.

Myth: The Form SEV from the Land Registry is what severs the tenancy

Reality: The written notice of severance (served on the other joint tenant) is what actually severs the tenancy under Section 36(2) of the Law of Property Act 1925. Form SEV is simply the administrative form you submit to HM Land Registry to register the severance that has already taken place. The severance is legally effective as soon as proper written notice is served, even before Form SEV is submitted or the Land Registry updates the register.

  • Joint Tenancy: The ownership type being severed, where right of survivorship means property passes automatically to the surviving owner regardless of your will.
  • Tenants in Common: The resulting ownership structure after severance, where each owner holds a defined share that can be left in their will.
  • Property Ownership: The broader category encompassing different ways property can be owned in England and Wales, including both joint tenancy and tenants in common.
  • Beneficial Ownership: The specific type of ownership interest that severance affects—the equitable interest rather than the legal title on the Land Registry.
  • Will: The estate planning document that controls your property share after severance, ensuring it passes to your intended beneficiaries rather than automatically to the co-owner.

Need Help with Your Will?

Understanding severance of tenancy is essential for ensuring your property share goes to your intended beneficiaries. After severing your joint tenancy, you need an up-to-date will to specify who inherits your property share.

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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.