Joint Tenancy vs Tenancy in Common: Differences, Survivorshi...

Introduction

Co-ownership of land in England and Wales usually takes one of two forms: joint tenancy or tenancy in common. The choice affects how the property is held during life, what happens on death, and how disputes are resolved.

At law, the legal estate can only be held as a joint tenancy (and by a maximum of four proprietors). The real differences arise in the beneficial interests. A beneficial joint tenancy carries the right of survivorship, so a deceased co-owner’s share passes automatically to the survivors. A tenancy in common gives each co-owner a distinct, undivided share that can be left by will or pass under intestacy. This guide sets out the key features, the traditional four conditions for a joint tenancy, how severance works, and the practical steps to get it right on the title and in your documents.

What You’ll Learn

• The practical differences between a joint tenancy and a tenancy in common
• The traditional four conditions for a joint tenancy: possession, interest, title and time
• How the right of survivorship works and when it does not apply
• How to sever a beneficial joint tenancy, including notice under s.36(2) Law of Property Act 1925
• Why an express declaration of trust is so important (and usually decisive)
• How courts decide unequal shares for tenants in common
• Registration points: TR1 panel 10, Form A restriction, and post‑severance entries
• Common pitfalls for buyers, co‑owners, lenders and advisers

Core Concepts

Joint tenancy: features and the four conditions

A beneficial joint tenancy is marked by two headline features:

• All co‑owners are together entitled to the whole (rather than to distinct shares during their lifetimes).
• On death, the right of survivorship operates so the deceased’s beneficial interest passes to the surviving co‑owners automatically.

Traditionally, a joint tenancy requires four conditions to be present at the point it is created:

• Possession: each co‑owner is entitled to enjoy the whole property.
• Interest: each holds the same type and duration of interest.
• Title: each acquires their interest under the same document or act.
• Time: each acquires their interest at the same time.

If any of these are missing when the beneficial ownership is created, the arrangement will be a tenancy in common instead.

Important distinctions:

• The legal estate is always held as a joint tenancy; you cannot sever the legal title. Severance only affects the beneficial ownership.
• Income and proceeds are treated equally between joint tenants while the joint tenancy lasts. If a joint tenancy is later severed, each former joint tenant takes an equal share unless there is a different express declaration.

Right of survivorship (jus accrescendi)

• A joint tenant cannot gift their beneficial “share” by will because there is no separate share to leave; it passes to the survivors by operation of law.
• Probate for the deceased’s share is not needed. Evidence of death is enough to perfect title for the survivors.
• Survivorship ends when only one owner remains; that person holds outright.

Exceptions and limits:

• Unlawful killing engages the forfeiture rule, preventing the killer from taking by survivorship. The court may grant relief in some cases under the Forfeiture Act 1982, but not for murder.
• A valid severance before death turns the arrangement into a tenancy in common, so survivorship will not apply.

Tenancy in common: separate undivided shares

Tenants in common each own a distinct, undivided share (for example 50/50 or 70/30). Key points:

• There is a shared right to occupy and use the whole property, but each person’s beneficial share is separate.
• Shares can be equal or unequal, and can be disposed of by will or on intestacy.
• A tenancy in common is commonly recorded at the Land Registry with a Form A restriction (for example, “No disposition by a sole proprietor… unless by order of the court”), which alerts third parties that there are separate beneficial shares.

Express declarations and default presumptions

• The cleanest approach is an express declaration of trust in the transfer (TR1, panel 10) or a separate trust deed. This can state, for example, “as tenants in common in equal shares” or “as tenants in common 70/30”.
• An express declaration is usually conclusive as to the beneficial ownership unless set aside for reasons like fraud or mistake (Goodman v Gallant).
• Without an express declaration, the starting point for a home bought in joint names is that equity follows the law: a joint beneficial ownership is presumed. That presumption can be displaced by evidence of a different common intention (Stack v Dowden; Jones v Kernott).
• Where property is in one name only, benefits claimed by the non‑owner are assessed under resulting or constructive trust principles.

Severance of a beneficial joint tenancy

Severance converts a beneficial joint tenancy into a tenancy in common in equal shares (unless there is an express agreement to different shares). It does not split the legal estate.

Main routes:

1. Written notice under s.36(2) Law of Property Act 1925

   • Any joint tenant can serve written notice of an immediate intention to sever on the other(s).
   • No special form is required, but the wording must show a present, not future, intention (Harris v Goddard).
   • Service is effective when delivered to the other joint tenant’s last known address, even if not read (Kinch v Bullard). Keep proof of service.

2. The classic Williams v Hensman routes

   • Act operating on a joint tenant’s own share (for example, an outright sale or a binding contract to sell the beneficial interest).
   • Mutual agreement to hold as tenants in common.
   • A course of dealing showing that all parties treated their interests as separate.

Other events and points:

• Bankruptcy of a joint tenant severs the beneficial joint tenancy, with the bankrupt’s share vesting in the trustee in bankruptcy.
• A mortgage by one beneficial joint tenant over their equitable interest can amount to an act operating on their own share.
• Divorce does not automatically sever. Use a clear s.36(2) notice or ensure that any agreed property adjustment effects severance.

Key Examples or Case Studies

• Goodman v Gallant [1986] Fam 106 Context: Property transferred into joint names with an express declaration of trust. Key point: An express declaration is decisive as to beneficial ownership unless set aside. If later severed, the shares follow the express declaration.

• Williams v Hensman (1861) 1 John & H 546 Context: Classic authority on how severance can occur. Key point: Three routes—act on own share, mutual agreement, or a course of dealing—remain central to modern severance analysis.

• Kinch v Bullard [1999] 1 WLR 423 Context: One joint tenant posted a severance notice, then tried to withdraw it. Key point: Severance by notice is effective on delivery, even if the sender later destroys or regrets the notice.

• Harris v Goddard [1983] 1 WLR 1203 Context: Divorce petition referred to a future property adjustment. Key point: Wording that looks to severance at some time in the future is not enough. The notice must show a present intention to sever.

• Drake v Whipp [1996] 1 FLR 826 Context: Property in joint names; dispute over the size of shares. Key point: For tenants in common without a clear declaration, the court can fix shares by looking at contributions and the whole course of conduct.

• Williams & Glyn’s Bank v Boland [1981] AC 487 Context: Wife in actual occupation with an unregistered equitable interest. Key point: Her rights bound a purchaser/mortgagee as an overriding interest. Always check who is in occupation and whether they have beneficial rights.

Practical Applications

• Choosing the right form

• Joint tenancy suits couples wanting automatic succession without the delay and cost of probate.

• Tenancy in common suits co‑owners who want defined shares (for unequal contributions, investment arrangements, second families, or tax planning).

• Drafting on purchase or transfer

• Use TR1 panel 10 to state clearly how the beneficial interest is held.

• If tenants in common, consider a separate declaration of trust setting out percentages, contributions, and how sale proceeds will be split.

• Enter a Form A restriction at the Land Registry for tenants in common.

• Recording and changing arrangements

• Keep your declaration of trust with your title deeds and your will.

• If circumstances change (marriage, separation, new contributions), review and, if needed, vary the declaration or sever the joint tenancy.

• Severance in practice

• Use a clear written notice showing present intention to sever; serve it on all other joint tenants and keep proof of delivery.

• After severance, apply to the Land Registry (Form SEV) to enter a Form A restriction.

• Consider the knock‑on effects for wills, life insurance, and IHT planning.

• Due diligence for buyers and lenders

• Inspect and ask about occupiers to identify possible beneficial interests that may bind on completion (as in Boland).

• For sales by co‑owners, ensure overreaching is achieved by paying capital money to two trustees or a trust corporation.

• Dispute and estate planning points

• A will cannot override survivorship. If a different outcome is needed, sever first.

• In cases of unlawful killing, consider the forfeiture rule and potential relief under the Forfeiture Act 1982.

Summary Checklist

• Decide at the outset: joint tenancy (survivorship) or tenancy in common (separate shares)
• Record the choice in TR1 panel 10 and, if tenants in common, enter a Form A restriction
• Prefer an express declaration of trust; it is usually decisive
• Remember: severance only affects the beneficial ownership, not the legal title
• For severance, use s.36(2) LPA 1925 notice or one of the Williams v Hensman routes
• Make sure any severance notice shows a present intention and is properly served
• On death under a joint tenancy, survivorship applies unless severed or barred by the forfeiture rule
• When shares are unclear for tenants in common, expect the court to look at contributions and conduct
• For lenders and buyers, always check occupiers and beneficiary consent to avoid surprises

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