Do You Know How You Own Your Property?
As a private client solicitor, I regularly advise clients on estate planning and Will drafting. One of the first questions I ask is: how do you own your home? What surprises me, time and again, is how many people simply do not know the answer and why it matters enormously.
If you own a property with someone else, you almost certainly own it in one of two ways: as joint tenants or as tenants in common. The distinction between the two affects what happens to your home when you die, how you can protect your share for loved ones, and how your estate is planned. Getting it right is one of the most important and most overlooked steps in estate planning.
What Are the Two Types of Joint Property Ownership?
Under English law, jointly owned property is held either as joint tenants or as tenants in common. Up to four people can be named legal owners.
Joint Tenants
As joint tenants, all owners hold the property together as a single unit. There are no separate individual shares, each person jointly owns the whole. The key feature is the right of survivorship: if one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant(s), regardless of what their Will says.
This means that if you own a property as a joint tenant, you cannot leave your “share” to anyone else in your Will. Even if you write a Will attempting to do so, it cannot override the right of survivorship. Joint tenancy is common among married couples and civil partners who are content for the property to pass automatically to their spouse.
Tenants in Common
As tenants in common, each owner holds a distinct, defined share of the property. Shares can be equal (50/50) or unequal — for example, 60/40 or 70/30 — typically reflecting each owner’s financial contribution to the purchase. There is no right of survivorship: when one tenant in common dies, their share does not automatically pass to the other owner. Instead, it passes according to their Will — or, if they have no Will, under the rules of intestacy.
This gives tenants in common far greater flexibility over what happens to their share on death, making it the preferred choice for unmarried couples, friends buying together, those with children from previous relationships, and anyone with more complex estate planning needs.
What Happens When a Joint Owner Dies?
Death and joint tenancy: the right of survivorship
For joint tenants, the outcome on death is straightforward. The surviving owner automatically inherits the deceased’s interest in the property. No Grant of Probate is needed for the property itself — ownership transfers seamlessly. For example, a brother and sister who own a property as joint tenants, and the brother wishes to leave his “share” to his child. Under joint tenancy, he cannot do so. His interest automatically passes to his sister on his death, regardless of what his Will states.
Death and tenancy in common: passing your share by Will
For tenants in common, the position is very different. Each owner’s defined share forms part of their estate on death and must be dealt with through their Will — or, where there is no Will, through the rules of intestacy.
This is critically important for unmarried couples. If you own property as tenants in common, are not married, and die without a Will, your share will not automatically pass to your partner. Under the rules of intestacy, it passes to your next of kin, which could mean your children, parents, or siblings but not your partner. This is one of the most common and preventable causes of distress in families we see at JC Solicitors, and it is entirely avoidable with a properly drafted Will.
How Do I Find Out How I Own My Property?
If you cannot recall how you took ownership, there are straightforward ways to check.
Most properties in England and Wales are registered with HM Land Registry. You can request official copies of your title register at gov.uk/get-information-about-property-and-land/copies-of-deeds for a small fee.
When you receive your title register, look for the following:
- If you own as tenants in common, the register will contain a “Restriction” in the following form: “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.” This restriction protects both owners’ shares by ensuring any sale proceeds must be paid to at least two people.
- If you own as joint tenants, there will be no such restriction on the title.
You can also check any original conveyancing documents or trust deeds from your purchase, or simply ask the solicitor who handled your conveyancing. If you are unsure, our team at JC Solicitors is happy to review your position as part of a free initial consultation.
How to Change Your Type of Property Ownership
You do not have to wait for a house purchase, sale, separation, or death to review and change how you own your property. Life circumstances change and so should your ownership structure when they do.
Severing a joint tenancy
If you are a joint tenant and wish to leave your share to someone other than your co-owner on death, you can “sever” the joint tenancy and convert it into a tenancy in common. This is done by serving a written notice of severance on all other co-owners and registering the corresponding restriction at HM Land Registry (using Form SEV). Once severed, each owner holds their defined share and can deal with it freely in their Will.
Severance can be done unilaterally; you do not need the agreement of your co-owner to sever. The other owner simply needs to be notified.
Converting from tenants in common to joint tenants
Conversely, tenants in common can convert their ownership to a joint tenancy if they wish — for example, a couple who have decided they want the simplicity of the right of survivorship. This requires all co-owners to agree and is done by declaration, withdrawing the existing restriction at HM Land Registry.
Our solicitors can advise on and handle both processes. Contact us to arrange a consultation at our Portsmouth, Chichester, or Alton offices.
Why Does Property Ownership Type Matter?
The way you hold your property has far-reaching consequences across several areas of planning. Here are the most important ones to understand.
Estate planning and Wills
For tenants in common, a valid Will is essential. Without one, your share passes under intestacy, which rarely reflects your actual wishes. A well-drafted Will, combined with the right ownership structure, gives you full control over who inherits your share of your home.
Protecting your share for children from a previous relationship
If you are in a second relationship and have children from a previous one, joint tenancy carries a significant risk. If you and your partner own as joint tenants and you die first, the property passes entirely to your surviving partner. If they later remarry or leave their estate to their own children, your children may receive nothing. Owning as tenants in common and leaving your share to a trust or directly to your children prevents this outcome.
Inheritance tax planning
The current Inheritance Tax rate in the UK is 40%, levied on the portion of an estate exceeding the available tax-free thresholds. The standard nil-rate band for the 2025–2026 tax year is £325,000, with an additional residence nil-rate band of £175,000 where a property is left to direct descendants. HTJ Tax Tenancy in common can offer greater flexibility for IHT planning, as each owner can direct their defined share via their Will and potentially make use of their own nil-rate band. If this is a concern for your estate, our team can refer you to appropriate specialist advice.
Care home fees
This is an area where we see significant confusion. The difference between joint tenants and tenants in common is critical for inheritance planning, but is less significant when it comes to care fees themselves.
When one partner needs care, the financial means test assesses that individual’s assets, their share of the property, regardless of whether the property is held as joint tenants or tenants in common.
However, ownership structure does become important as part of a broader estate planning strategy. Converting to tenants in common, and pairing this with a Will that places your share into a life interest trust, means that when the first partner dies, their half of the property is held in trust rather than passing outright to the survivor. If the survivor later needs care, only their half is assessed — the trust share is protected for children or other beneficiaries. (WUHLD)
This type of planning should always be done well in advance and with proper legal advice, as changes made shortly before entering care may be treated as deliberate deprivation by the local authority.
Speak to our estate planning or trusts team for advice tailored to your circumstances.
Divorce and separation
Joint tenancy and tenancy in common are both relevant in divorce and separation. For joint tenants, a severance of tenancy is often one of the first steps when a relationship breaks down, preventing one party’s share from passing automatically to the other if they die during proceedings. For unmarried couples separating, tenancy in common structures and any accompanying declaration of trust are central to resolving the property split. Our family law team can advise on this in full.
Bankruptcy and creditors
If a joint tenant becomes bankrupt, creditors may be able to force the sale of the property to recover debts, even if the other owner is entirely debt-free. Tenancy in common provides slightly more defined protection of each owner’s individual share, though this is a complex area and professional legal advice is always recommended.
Declarations of trust
Where two or more people own a property as tenants in common, particularly where contributions to the purchase price were unequal, a declaration of trust (also called a deed of trust) is strongly recommended. This is a legal document that formally records each owner’s share and sets out what will happen to each person’s contribution if the property is sold, one owner wishes to buy the other out, or the relationship breaks down. It provides clarity and legal protection that the standard Land Registry title alone does not.
Our solicitors can draft declarations of trust as part of your property purchase or at any time during joint ownership. Book a free consultation to discuss your needs.
Which Type of Ownership Is Right for Me?
The right answer depends on your personal circumstances. As a guide:
Joint tenancy is typically suited to:
Married couples or civil partners with no children from previous relationships, who are content for the property to pass automatically to each other, and who want simplicity.
Tenancy in common is typically suited to:
Unmarried couples, friends or family buying together, anyone with children from a previous relationship, those with significantly unequal financial contributions, and anyone wanting flexibility in estate planning.
In practice, both types of ownership can be appropriate at different life stages. Reviewing your ownership structure, particularly when circumstances change is a straightforward step that can make a significant difference to your estate.
How JC Solicitors Can Help
At JC Solicitors, our private client team advises individuals and families across Portsmouth, Chichester, and Alton on all aspects of property ownership and estate planning. We can help with:
Estate planning and Will drafting
Ensuring your Will reflects how you own your property and that your wishes are legally protected. Find out more about our Will drafting service.
Cohabitation agreements
For unmarried couples, a cohabitation agreement can work alongside your tenancy structure to provide clarity on finances and property in the event of separation.
Probate and estate administration
If a co-owner has died and you need to deal with their share of a property, our probate team can guide you through the process.
Trusts
From life interest trusts to property protection trusts, our trusts team can help you structure your estate in a way that protects your home for the people you care about most.
Book a free initial consultation or call our Alton office on 01420 544 273, our Chichester office on 01243 850 860, or our Portsmouth office on 02392 174 049.
Frequently Asked Questions
What is the difference between joint tenants and tenants in common?
Joint tenants own the property together as a single unit with no separate shares. If one joint tenant dies, the property automatically passes to the surviving owner(s) — you cannot leave your share in a Will. Tenants in common each hold a defined share, which can be equal or unequal, and each owner can leave their share to whoever they choose in their Will.
How do I check how I own my property?
Request official copies of your title register from HM Land Registry at gov.uk/get-information-about-property-and-land/copies-of-deeds. If the register contains a “restriction” (referring to a sole proprietor and capital money), you are tenants in common. If there is no restriction, you are likely joint tenants. You can also check your original conveyancing documents or contact the solicitor who handled your purchase.
How do I change from joint tenants to tenants in common?
You can sever a joint tenancy by serving a written notice of severance on all co-owners and registering a restriction at HM Land Registry using Form SEV. This can be done by one owner without the other’s agreement — the other owner simply needs to be notified. Our solicitors can handle this process for you.
Can a joint tenant leave their share in a Will?
No. The right of survivorship means that when a joint tenant dies, their interest passes automatically to the surviving joint tenant(s), regardless of what their Will says. If you want to leave your share to someone other than your co-owner, you must first sever the joint tenancy and convert it to a tenancy in common.
What is a declaration of trust?
A declaration of trust (also called a deed of trust) is a legal document that sets out each co-owner’s share in a property and what will happen to each person’s investment if the property is sold, a co-owner buys the other out, or circumstances change. It is particularly important where co-owners have made unequal financial contributions to the purchase. Our solicitors can draft a declaration of trust as part of a property purchase or at any stage of joint ownership.
Does tenants in common protect against care home fees?
Not directly, the means test assesses your individual share of a property regardless of whether you hold as joint tenants or tenants in common. However, owning as tenants in common and combining this with a life interest trust in your Will can protect the first partner’s share from being assessed in the survivor’s means test if the survivor later needs care. This type of planning must be done well in advance and with proper legal advice. Speak to our estate planning team for advice on your specific situation.
What happens if a tenant in common dies without a Will?
Their share passes under the rules of intestacy, meaning it goes to their next of kin, not their surviving partner (unless they are married). For unmarried couples, this can mean a partner loses their home. A properly drafted Will is essential for all tenants in common.
Can tenants in common force a sale?
In principle, any co-owner can apply to the court for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). The court will consider various factors, including the welfare of any children living at the property. If you are facing a property dispute with a co-owner, our family law team can advise you.
Related articles and services:
