There are two ways in which more than one person can own land. The terms used are “Joint Tenants” and “Tenants-in-common”. These terms apply even when the land concerned is freehold and so the co-owners are not tenants in the normal sense. The distinction is crucial on the death of one of the owners or if the parties separate.
If buyers decide to own a property as Joint tenants and one of them dies, their share in the property automatically passes to the other owner. It makes no difference whether a will has been made and a joint tenant cannot leave his or her share of the property to anyone other than the co-owner. Where property is purchased as joint tenants, each individual is deemed to own an equal share of the property, whether they have made any contribution towards its purchase price or to the mortgage or other household payments.
In this case, each individual owns a separate and distinct portion of the value of the property. If one of the owners dies, his or her share would not pass automatically to the other owner, but to whoever is nominated in that individuals’ Will, or in the absence of a Will, under the rules of intestacy which apply. If you elect to own the property as tenants in common, you really should make a Will to ensure that the shares in the property pass in the appropriate parties. Even if tenants in common are husband and wife, and the intention is for each to inherit the other’s share on death, if a death occurs and there is no Will, it is by no means guaranteed that the surviving spouse will inherit that share of the property under the intestacy provisions.
Generally, married couples will own their own homes as joint tenants although they may wish to consider owning their home as tenants-in-common, where they are undertaking a series of tax planning measures or where there are children from a previous marriage or relationship.
There are also occasions where it is prudent for married couples to own their home as tenants-in-common, for example, where one spouse could face an unlimited personal liability or where one spouse buys the home with assets owned by that spouse before marriage
In the case of non-married couples it may be that unequal contributions to the purchase price, (i.e. one party has paid a higher percentage of the deposit) and the parties wish to make an express declaration at the time of acquisition.
If no such declaration is made this could have potential consequences as follows:-
- The possibility of a future dispute
- Becoming involved in litigation later on and incurring costs as a result.
- The possibility that the court will divide the property in a way that is different from what the parties had originally intended.
It is possible to hold the land in equal or unequal shares and this would depend on how the purchase monies will be provided.
You can arrange simply hold the property in shares agreed (i.e. 60 to Mrs Smith and 40% to Mrs Smith absolutely). You will need to inform below if this is to be the case.
Alternatively, and to avoid any future conflict you can ask that a Declaration of Trust is drawn up to protect each parties interests.
This declaration is a more detailed document which may include information such as:-
- How much each party contributed to the purchase price
- If one party is to receive a cash payment prior to any split thereafter
- The share that each party intends to hold in the property
- And what the parties responsibilities are in respect of any mortgage or other outgoing.
We do advise on the desirability of protecting your position in relation to the above, however, it is important that you understand that you all have the right to obtain independent legal advice in relation to his form.
If you are at all unsure about any of the provisions mentioned above, please do not hesitate to contact us to discuss your requirements further.
Give us a call to discuss this service further