Severance of Joint Tenancy: Protecting Your Property Rights
Severance of joint tenancy is a powerful legal mechanism that allows you to take control of your property rights and protect your financial interests. Whether navigating a relationship breakdown or finalising inheritance planning, severing ensures the 'Right of Survivorship' no longer dictates your future. By ending a joint tenancy, you transform ownership into a structure that reflects your specific intentions and provides long-term security for your estate.
While being a joint tenant in a marriage makes sense, it makes less sense if you aren't married and your relationship has broken down. We go into detail about the risks of remaining as joint tenants in the event of a dispute, and what you can do to change to tenants in common if you have to, even without the joint owner's consent.
What does the law say?
The part of the Law of Property Act 1925 that actually allows you to sever a joint tenancy is Section 36(2):
"...where a legal estate... is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire..."
Do you sever the legal title?
No because in English law, the Legal Title (the names held at the Land Registry) must always be held as Joint Tenants. You cannot have "Tenants in Common" on the legal title itself, because the Land Registry needs to treat the owners as a single block.
When you sever, you are not changing the Legal Title; you are changing the Equitable (Beneficial) Interest.
- Legal Title: Remains Joint (you both still own the whole property in the eyes of the Land Registry).
- Equitable Interest: Becomes Tenants in Common (you now own 50/50 shares, or whatever you decide in a Deed of Trust).
The equitable/beneficial interest is what most people are interested in because it is the percentage they get paid from the sale of the property. If you're confused between legal ownership and a beneficial interest, get in contact with us and let us help you: Call 0333 344 3234 (local call charges apply) / help@samconveyancing.co.uk.
The Right of Survivorship is a legal rule that applies when you own property as Joint Tenants. It means that if one co-owner dies, their interest in the property automatically passes to the surviving owner(s), regardless of what is written in their Will.
What is the Right of Survivorship?
In a Joint Tenancy, the owners are viewed as a single legal entity. Because there are no distinct shares, the property cannot be left to anyone else. The last surviving owner eventually acquires 100% ownership of the property.
The transfer happens instantly upon death. It bypasses probate and overrides any instructions left in a Will or the rules of intestacy.
Why stop it?
Stopping the Right of Survivorship, a process known as severance of joint tenancy, is a strategic move to regain control over your property ownership. Here are the three most common reasons to stop it:
- 1
Protecting Inheritance
If you have children from a previous relationship or other beneficiaries you wish to provide for, you must stop the Right of Survivorship. If you don't, and you die first, your partner inherits everything, and your children may receive nothing from the property's value.
- 2
Relationship Breakdown
If you are separating or divorcing, you likely no longer want your ex-partner to automatically inherit your share of the home if you pass away before the financial settlement is finalised. Severing the tenancy ensures your share belongs to your estate instead of your former partner.
- 3
Long-term Care Planning
If one owner needs to move into residential care, the local authority may assess the property's value for care fees. By severing the tenancy and holding the property as Tenants in Common, owners can sometimes ring-fence a portion of the property's value, ensuring it is preserved for their heirs rather than being entirely consumed by care costs.
How do you stop it?
To stop the Right of Survivorship, you must change your ownership status to Tenants in Common. You can do this whether both parties agree to it or not.
- Mutual Consent: Both parties sign Form SEV and submit it to the Land Registry.
- Notice of Severance: If one party refuses to cooperate, the other can serve a formal "Notice of Severance." Once served, you can apply to the Land Registry unilaterally to protect your share.
Once the process is complete, the Land Registry will add a Form A Restriction to your title deeds, confirming that the Right of Survivorship no longer applies to your home. The full process is explained here: How do I change a joint tenancy to tenants in common?
Sever Your Joint Tenancy Today
- We include a FREE template Notice of Severance.
- We include a FREE 15-minute consultation with a property dispute solicitor(1).
- Applications made digitally to the Land Registry within 5 working days(2).
- Fixed Fee of £260 INC VAT for just the severance at the Land Registry.
Severance of joint tenancy during divorce or separation
The primary reason is to cancel the Right of Survivorship.
If you remain Joint Tenants during a separation and you pass away before the final financial settlement (Final Order) is granted, your ex-partner will automatically inherit 100% of the property. This happens regardless of what your Will says or how much you have contributed to the mortgage.
By severing the tenancy, you ensure that if you die, your share (usually 50% by default) passes to your chosen heirs (children, family, etc.) rather than your former partner.
Why Section 196 Matters in Divorce or Disputes
In a Severance of Joint Tenancy case, Section 196 of the Law of Property Act 1925 provides protection against a partner who refuses to sign the Land Registry Form SEV.
If you send a Notice of Severance via recorded delivery to your partner's home, and if it is not returned, the joint tenancy is legally severed in equity the moment that letter arrives.
Your partner does not need to agree, sign anything, or even open the envelope for the severance to be effective, as long as you have followed the Section 196 delivery methods.
Download our notice of severance template in PDF or Word format, free from hassle.
- Instant download.
- Easy to fill in.
- Suitable format to submit your notice of severance.
The templates will be attached to your confirmation email after payment. Please allow a couple of minutes for the email to arrive.
Expert Tip - You risk a long legal battle if you sever without consent
When you sever a joint tenancy without the consent of the other owner, you run the risk of a long legal battle. The reason is that they may dispute ownership of more than a 50:50 share of the property.
Whilst you can protect yourself against the right of survivorship, it isn't so easy to defend a case brought that states a joint owner has a greater share in the property than you. Or conversely, that you own more of the property.
Andrew Boast FMAAT
CEO of SAM Conveyancing
The risk of severing a joint tenancy without content
While you want to protect your share from the automatic rule under survivorship, one of the biggest risks once you sever the joint tenancy is: What percentage do you actually own?. You may assume you own 50% when you sever from an equal 100%; however, this is not always the case. Add to this that the percentage may differ after you change to tenants in common.
What can change your ownership share?
As tenants in common, you own a separate share of the property from the other joint owner. This share may start at 50%; however, unless you have a deed, it can change. The technical term is a constructive trust that is created through your contributions to the property, and this is how it happens:
- Mortgage Repayments. If you pay more money than a joint owner, you can claim that your share in the property has increased.
- Refurbishments. If you enhance the property's value through refurbishments, you can retain the full benefit of the increase and avoid sharing it with the joint owner.
How can you avoid this risk?
You can avoid this risk by drafting a Deed of Trust at the same time as the severance. A deed is an express trust, meaning it is drafted to stop any future events from changing the agreed terms between the joint owners. This is less of a risk for divorcees, as the Family Court will determine the split of the assets, regardless of whatever documents you provide to them to confirm ownership.
For anyone else, you should be wary of merely severing the joint tenancy without some agreed share structure of the beneficial interest split.
Property Dispute Consultation
Book a FREE* 15-minute meeting with a specialist Property Dispute Solicitor today.
- Implications of severing a joint tenancy.
- How to force a sale.
- Calculating your share in the property.
- Applications to court, including Declaratory Orders, Regulatory Orders, and Occupational Rent.
Frequently Asked Questions About Severing a Jopint Tenancy
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.
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.
