Buying a property is a big investment and these days it is very common for buyers to make uneven contributions to the purchase price or borrow money from parents to be able to get onto the property ladder.
At MW we always advise co-owners who hold property as “tenants in common” to consider entering into a declaration of trust so they can:
- Confirm the extent of their respective beneficial interests, for example, because one person has contributed a greater share to the purchase price of the property, to the mortgage or improvements.
- Set out any express terms that the co-owners want to include. These might include provisions to deal with a situation where one of the co-owners wants to sell or practical arrangements for day-to-day issues such as how the parties will arrange for maintenance and meet other expenses related to the property.
What are “Joint Tenants” and “Tenants in Common”?
As co-owners of a property, you can hold the property in one of two ways as either joint tenants or as tenants in common. These are two ways of describing how you own the property, the terms have a different legal meaning to the type of tenant who rents a property from a landlord. If you are making a declaration of trust or you are creating a trust over your property either during your lifetime or in your Will then the property must be held as tenants in common.
If you hold the property as joint tenants, both of you will own the whole of the property. You will not each have a quantified share in the property and will not be able to leave a share of the property in your will.
If you sell the property, or if you separate, it will be presumed that you both own the property equally, regardless of your respective contributions to the purchase price. On the death of one co-owner, their interest in the property would automatically pass to the remaining co-owner without any further action. The surviving co-owner would then own all of the property and on their death it would form part of their estate. This is known as the "right of survivorship".
Married couples or those in a civil partnership commonly use this method of co-ownership because the right of survivorship makes it straightforward to inherit each other's shares in the property.
However, there may be reasons not to become joint tenants. For example, if one of you has made a larger contribution to the purchase price of the property and you would want this to be recognised if the property is sold or if you separate. A joint tenancy is also not suitable if you have a family from an earlier marriage and wish to leave your interest in the property to them, instead of passing it to the other co-owner.
Tenants in Common
If you hold the property as tenants in common, each of you will own a specified share in the property. You need to consider whether each person's share will be fixed or whether the shares will vary according to the financial contributions made by each person during your ownership of the property. In coming to your decision, you should think about the following:
- If you opt for fixed shares, your shares may be equal, but they do not have to be. Holding the property as tenants in common in unequal shares may be desirable if you have made unequal contributions to the purchase price of the property.
- If your shares are fixed, you will need to decide the size of those shares now. You may therefore need to revisit the split if there is a change of circumstances in the future which you want to reflect in the proportions in which you own the property. An example would be if only one of the co-owners pays the costs of significant improvements to the property.
- If your financial contributions towards the property throughout your ownership may be unequal (for example, if one person pays a larger proportion of the mortgage repayments or the costs of any major works to the property), you may want your shares to reflect this. This means that your respective shares in the property may vary from time to time depending on who pays what. The calculations will be more complex and you will need to keep accurate records of each person's contributions.
- If you hold as tenants in common, your share of the property can be passed on to another person, either during your lifetime or under your will. If you do not have a will at the time of your death, then your share will pass in accordance with the rules of intestacy.
Holding the property as tenants in common may be appropriate if you have children from previous relationships and would prefer them to inherit your interest on your death rather than your co-owner.
If you wish to hold the property as tenants in common, then you should sign a declaration of trust. A declaration of trust is a document that formally records that you hold the property as tenants in common and sets out your respective shares in the property. If you sell the property, or if you separate, the declaration of trust will be referred to, to work out your entitlement to the sale proceeds from the property.
We Can Help
At MW, our mission is to make quality legal services accessible to everyone, including anyone helping their children to buy their first home. If you are in any doubt over any aspect of declarations of trust you can speak to one of our specialist solicitors, call us today on 0203 551 8500 or email us at firstname.lastname@example.org