Joint Ownership: Joint Tenants vs Tenants in Common (and Why It Matters)

If you're buying a property with another person — a partner, spouse, friend or family member — one of the first legal decisions you'll need to make is how you want to hold the property together. Many buyers don't even know they have to answer this, but it's one of the most important questions in the whole transaction. There are two ways to co-own property in England: as joint tenants, or as tenants in common. Despite the similar names, they are legally very different.

Joint Tenants: You Own It Together, Equally

Under joint tenancy, both (or all) owners together own the whole property — you don't each have a separate, identifiable share. The defining feature is the right of survivorship: if one joint tenant dies, their interest passes automatically to the surviving joint tenant(s), regardless of what their will says, and without going through probate.

This makes joint tenancy straightforward for married couples who want the property to pass to the surviving spouse automatically. What it doesn't do is allow each owner to leave their share to someone else — for example, children from a previous relationship. If that matters to you, joint tenancy is the wrong choice.

Tenants in Common: Each Person Owns a Defined Share

Under tenancy in common, each co-owner holds a distinct, defined share — equal (50/50) or unequal (60/40, 70/30, or any split). Each owner can leave their share to whoever they wish in their will. There is no right of survivorship — if one tenant in common dies, their share passes under their will (or, with no will, under the rules of intestacy, which may not produce the result you'd expect).

Tenants in common is often right where:

• Co-buyers are contributing unequal deposits
• The buyers are not in a long-term relationship — friends, siblings, business partners
• One or both buyers have children from previous relationships and want to protect their inheritance
• The property is partly funded by family money that the family wants to retain an interest in

Declarations of Trust

If you're buying as tenants in common — particularly with unequal shares — you should have a declaration of trust drawn up alongside the conveyancing. It sets out the shares each owner holds, what those shares are based on (deposit and mortgage contributions), how the property should be dealt with if one owner wants to sell and the other doesn't, and what happens if one owner dies. Without one, unequal shares can be disputed — and disputes between co-owners are expensive and draining. Getting the document right at the start is far cheaper than resolving a dispute later.

What Happens on Death?

• Joint tenants: the survivor inherits automatically; the deceased's will is irrelevant to the property.
• Tenants in common: the deceased's share falls into their estate and passes under their will — or, with no will, under intestacy. For unmarried partners this can be a serious problem, as an unmarried partner has no automatic right under intestacy and could receive nothing. If you're buying as tenants in common, making a will is essential.

What Happens on Relationship Breakdown?

A joint tenancy can be converted into a tenancy in common at any time by "severing" it — one owner can do this unilaterally by serving written notice, after which it becomes a tenancy in common in equal shares.

If you separate and can't agree, either owner can apply to court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale or a declaration of each party's interest — proceedings that can be costly, which is another argument for a declaration of trust. For married couples and civil partners, the family court has wider powers on divorce; for unmarried couples, TOLATA is the only route and the court is more constrained.

A Practical Guide

• Married couple, equal contributions, no children from previous relationships → joint tenants
• Unmarried couple, unequal deposits → tenants in common with a declaration of trust
• Friends or siblings buying together → tenants in common with a declaration of trust
• One party funded partly by family money → tenants in common with a declaration of trust
• Married couple where one has children from a previous relationship → tenants in common, with careful estate planning

Always take personalised advice — this is a starting point, not a substitute for it.

Don't Forget to Make Your Will

However you hold the property, buying a home is often the prompt to get a will in place or update an existing one. Your home is likely your most valuable asset — making sure it goes where you want, tax-efficiently, is worth a conversation.

How Bonsai Law Can Help

When we act for you on a joint purchase, we'll always ask how you want to hold the property and make sure you understand the implications of each option. If a declaration of trust is appropriate, we can prepare one as part of your transaction, and we can advise on making or updating your will. If you're buying jointly, get in touch with our residential team — it's a conversation well worth having early.