Joint Tenants vs Tenants in Common: Which is best for you?
Choosing how to own property with another person is a critical legal decision that dictates your financial security and inheritance rights. Whether you are buying as a married couple, with a partner, or as an investor, you must choose between becoming joint tenants or tenants in common.
This choice determines what happens to your share of the property if you die, how you divide the proceeds if you separate, and whether you can protect an unequal deposit. This guide compares both structures to help you finalise the best arrangement for your specific circumstances.
Differences Between Joint Tenants and Tenants in Common
The legal title is always held as joint tenants, but the equitable interest, also called the beneficial interest, can be held as joint tenants or tenants in common, and these are the differences.
Feature | Joint Tenants | Tenants In Common |
Ownership | You both own 100% of the property together. | Each person owns a specific share (e.g., 50%/50% or 70%/30%). |
Survivorship | Automatically passes to the other owner on death. | Passes to whoever is named in your Will or lines of intestacy. |
Control | Cannot assign your beneficial interest to anyone, including the other legal owner. | Can act independently regarding your specific share. |
Better suited towards | Married couples protected by Family Law. | Unmarried couples, family, friends and investors. |
Change to Tenants in Common Today
- Whether for tax planning or divorce/separation.
- Deeds drafted within 2 working days(1).
- Applications made digitally to the Land Registry within 5 working days(2).
- Fixed Fee of £535 INC VAT for a deed and a severance, or £260 INC VAT for just the severance.
When do you choose the ownership?
You choose the ownership structure when you originally purchased the property together, or when you added them to the title. A Form TR1 is predominantly used for land transfer, and in section 10, you declare how you hold the beneficial interest.
Declaration of trust. The transferee is more than one person and:
- they are to hold the property on trust for themselves as joint tenants
- they are to hold the property on trust for themselves as tenants in common in equal shares
- they are to hold the property on trust...in unequal shares
The TR1 Form is a Land Registry deed and is written in stone, and is evidence of what the owners agreed to. This is why most owners get a deed of trust because they want to state more than just what the TR1 asks in Box 10.
Can you change your title ownership?
Tenants in Common to Joint Tenants
Unmarried couples who go on to marry may want to change how they own their property to reflect their new legal status. This simplifies inheritance and ensures the property passes to the surviving spouse automatically, avoiding the need for probate on death.
The change in ownership is reflected by removing the Form A restriction with Form RX3, providing an accompanying Deed of Surrender to confirm each owner understands the beneficial interest split, and cancelling the original statement of truth with Form ST5 at the Land Registry.
Our fee for this service starts from £535.
Joint Tenants to Tenants in Common
Couples who divorce or separate may want to change from Joint Tenants to Tenants in Common. This allows each person to own a specific share of the property, which they can then leave to someone other than their former partner in their will.
It also offers more flexibility in dealing with the property, as it doesn't automatically go to the other owner upon death. Similarly, couples who own a buy-to-let property as joint tenants might decide to switch to tenants in common to manage income and tax implications more effectively.
The ownership structure change is submitted to the Land Registry with a Form A restriction and can be done through a Notice of Severance or a Deed of Assignment. Our fee for this service starts from £559.
How a solicitor helps: A solicitor can prepare all the necessary legal documents (Deed of Severance, Notice of Severance, Deed of Trust), ensure they are correctly executed, and handle the registration process with the Land Registry, giving you peace of mind that the change is legally sound.
Tenants in Common vs Joint Tenants: How do you choose?
What happens if you die?
Married couples mostly share their main residence as joint tenants to allow the property to go directly to their joint owner when they die.
Joint tenancy isn't suitable for unmarried couples, because upon death the deceased party may wish their property to go to their family or, if there are children, to their children. It is also worth considering what happens if you break up.
Is this an investment?
Married couples can often own investment properties as buy-to-lets because they might have lived in it before buying their new residence, choosing not to sell it and use it as an investment instead.
If the property is an investment, then you need to consider if owning it as joint tenants is tax-efficient for you. Having an exact 50:50 beneficial share is rarely tax-efficient.
What if you broke up?
Unmarried couples would want the flexibility to sell the property if they break up, get their money out and move on with their lives separately. The challenge arises if one of the joint owners doesn't want to sell but can't afford to buy you out.
You can force a sale but this is costly and your success rate depends on your intentions for the property when you first purchased it.
SAM's 'best fit' image
What are the Pros and Cons of Joint Tenants?
The surviving joint tenant owns 100% of the property
If tenants in common, the deceased's Estate would look to sell the property to release the equity due to the estate.
Simple beneficial ownership
Joint tenants own the property 100%, so they share income equally 50/50.
Costs less in legal fees
Solicitors charge more for drafting a Deed of Trust and registering the restriction.
No need to declare a From 17
Any rental income from the property is shared 50/50 so there's no need to declare to HMRC.
Risk in relationship breakdown
Joint tenants own the property 100%, in one indivisible share, so if one party pays more than the other to buy the property, this is not recognised and any gain or loss is shared equally.
No Deed of Trust
You cannot have a Deed of Trust when buying as joint tenants.
Harder to force a sale
If you live in the property as joint tenants, you will struggle to sell the property without mutual consent, forcing you to go to court to seek a court order.
How do I confirm my type of ownership?
You declare your ownership type in the TR1 deed (Transfer of Whole of Registered Title) when buying the property. This legal document specifies whether you are purchasing as Joint Tenants or Tenants in Common.
If you already own the property and want to change the ownership structure or add someone to the title, you will also use a TR1 form or other relevant Land Registry forms such as an AP1 (Application to change the register). It's crucial to ensure the TR1 (or other relevant form) accurately reflects your intentions, as it forms the basis of your legal ownership.
How a solicitor helps: A solicitor can guide you through the process of completing the TR1 (or other relevant forms) and ensure it aligns with your wishes. They will also handle the submission and registration of the form with the Land Registry, ensuring the changes are officially recorded.
What are the Pros and Cons of Tenants in Common?
Your beneficial interest is separate and can be unequal
You own your own individual share of the property that belongs to you. It is advisable to draft a Deed of Trust to confirm what this share is.
Reduced risk in relationship breakdowns
If joint owners have a Deed of Trust, the risks are reduced if the relationship breaks down. As joint tenants, you can't create a Deed of Trust. With a deed, you can include beneficial interest shares and what happens if either party wants to sell.
Easier to force a sale
If you have a Deed of Trust with an exit clause, it is easier to sell the property if one party doesn't want to sell.
Your share goes to your Estate on death
When you die, your share of the beneficial interest in the property passes to the beneficiaries named in your will and not the joint owner of the property.
Draft a Deed of Trust
A Deed of Trust details the beneficial interest shared between the joint owners. A basic Deed of Trust costs £240 INC VAT and we can draft this for you.
Draft a will
Your share of your property goes to your beneficiaries upon death and not to the other joint owner. If you don't have a will then you die intestate. A basic will costs £180 INC VAT and we can draft this for you.
Declare a From 17
If you are married and own the property as tenants in common in unequal shares, any rental income from the property is shared 50/50 and as such there is no need to declare to HMRC.
Do you need a Deed of Trust for separate beneficial shares?
Whether you buy as Joint Tenants vs Tenants in Common, you need to think through how you want to live together with your joint owner.
If you are buying as tenants in common, then you are best advised to draft a Deed of Trust to set out the intentions between the beneficial joint tenants. We offer different types of deeds including:
- Basic Deed of Trust - Aimed at married couples, long-term relationships and family members looking to declare the individual beneficial interest and confirm an exit strategy for when either party wants to sell.
- Buy to Let Deed of Trust - Aimed at joint owners looking to share property income in a tax-efficient way, to be filed alongside a Form 17 declaration to HMRC if you are married and tenants in common.
- Foating Deed of Trust - Aimed at unmarried couples and friends and includes a more complex formula to calculate the beneficial interest over the life of the investment, taking into account mortgage repayments, costs of purchase/sale and developments.
Protect your interest in a property and confirm how to sell. Drafted by a solicitor.
The first draft is within 1 to 2 working days* and includes:
- Deposit paid.
- The percentage ownership of each party.
- How to share expenses like the mortgage and bills.
- Share of property income - rent or gain on sale.
- How to sell the property.
- How the property is divided in the event of separation, divorce, or death.
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands-on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
Caragh has written extensively for SAM with expertise on sale and purchase conveyancing, the Help to Buy redemption process, equity transfers and deeds, leasehold reform, RICS home surveys, shared ownership, and independent legal advice for specialist mortgage products and ownership structures.
Changing from Joint Tenants to Tenants in Common: A Guide
Change From Tenants in Common to Joint Tenants
