Should we own the house as joint tenants or tenants in common?

The two ways of co-owning property in England, Wales and Northern Ireland, what each does when an owner dies, how to change from one to the other, and Scotland's completely different mechanism.

Difficulty: intermediate
Time: 12 min
Read: 5 min
Safety: caution

Short answer

Joint tenants own the whole property together with no distinct shares, and when one dies their interest passes automatically to the survivor — a will cannot change it. Tenants in common own defined shares, which can be unequal, and each share passes under the owner's will. Changing from joint tenants to tenants in common is called severance, is done by written notice plus a Land Registry restriction, and carries no Land Registry fee.

Conveyancers ask this question in a single line of an email and most buyers answer it without understanding what they have chosen. It matters most in two situations: where the buyers have contributed unequally, and where either has children from a previous relationship. In both, a joint tenancy can produce an outcome nobody intended, because survivorship happens automatically and silently.

Safety

This decision determines what happens to a share on death and it overrides what a will says in one of the two cases. It interacts with inheritance tax, with care fee planning and with what happens on a relationship breakdown. This guide explains the mechanics; take advice from a conveyancer or a solicitor before choosing, especially where there are children from a previous relationship.

Step by step

Understand joint tenancy.All the owners own the whole property together and none has a distinct share. On death, the deceased's interest passes automatically to the surviving owners by survivorship. You cannot leave it in a will, and it does not form part of the estate for distribution.
Understand tenancy in common.Each owner has a defined share, which can be unequal — sixty-forty, or in whatever proportions reflect the contributions. On death, the share passes under the owner's will, or under the intestacy rules if there is none.
Choose on the two questions that matter.Did you contribute unequally, and do you want your share to go to someone other than the co-owner? If either answer is yes, tenants in common is the structure that supports it.
Record the shares in a declaration of trust.Where you hold as tenants in common in unequal shares, a declaration of trust records the proportions and how the proceeds are divided, including how contributions to the mortgage and to improvements are treated. Without it the shares are open to argument later.
Make wills to match.A tenancy in common only achieves anything if there is a will saying where the share goes. Owning as tenants in common with no will leaves the share to the intestacy rules, which may produce exactly the outcome you were trying to avoid.
Find out which you have.HM Land Registry does not record who owns the beneficial interest, so the register cannot say for certain. The practical indicator is a restriction on the register referring to a sole surviving proprietor and capital money: if it is there, you are tenants in common. Your purchase file will also have the declaration.
Sever a joint tenancy if you want to change it.One owner can sever unilaterally. It is done by giving written notice to the other owners and applying to HM Land Registry to enter the restriction. There is no Land Registry fee for the change, and it does not require the other owner's agreement.
Or convert the other way after marriage.Tenants in common can become joint tenants where all the owners agree, which is a common step after a marriage or a civil partnership. Again there is no Land Registry fee.
Scotland: look for a survivorship destination instead.Scotland does not use joint tenancy and tenancy in common. The equivalent of survivorship is a special destination written into the title, typically expressed as being to the co-owners and to the survivor of them. Where present, the deceased's share passes immediately to the survivor without confirmation and overrides the will.
Scotland: know that removing it needs work.A survivorship destination is part of the title and taking it out means a solicitor updating the title at Registers of Scotland. It is not something a will can do. Where there is no destination, each owner holds a share that passes through their estate.
Deal with the mental capacity point.If a co-owner loses mental capacity, selling requires either an attorney under a registered power of attorney or an application to the Court of Protection. That is a strong reason to have powers of attorney in place regardless of how the property is held.

Tips

If you contributed unequally, get a declaration of trust at the point of purchase. Reconstructing contributions years later is expensive and unpleasant.
Severance is free at the Land Registry and does not need the other owner's consent. Cost is not a reason to delay it.
In Scotland, ask your solicitor whether the title contains a survivorship destination. It overrides a will and most owners do not know it is there.

Common mistakes

Choosing at the conveyancer's email without understanding it — It is one line in a long email and it decides what happens to the largest asset most people own. Ask what each option would mean in your specific circumstances.
Severing but not making a will — A severed share passes under the will, and with no will it passes under intestacy — which can send it to exactly the person you were trying to plan around.

If it doesn't work

You cannot tell which you have

Cause: The register does not record beneficial ownership — Fix: Obtain the title register and look for a restriction referring to a sole surviving proprietor. Then check your purchase file for the declaration of trust or the conveyancer's report.

You contributed unequally but hold as joint tenants

Cause: The default option was taken at purchase — Fix: Sever the joint tenancy and record the shares in a declaration of trust. Do it while both of you agree — it is much harder after a relationship breaks down.

A co-owner has died and you do not know what happens

Cause: The answer depends entirely on how it was held — Fix: Get the title register and the purchase file, and take advice. If it was a joint tenancy the interest has already passed by survivorship; if a tenancy in common it forms part of the estate.

Questions people ask

Can my will override a joint tenancy?

No. Survivorship operates outside the will, so the interest passes to the surviving owner whatever the will says. If you want your share to go elsewhere you must sever the joint tenancy first.

Does severing mean I have to sell?

No. Severance only changes how the beneficial ownership is held. Nobody has to move and the mortgage is unaffected.

Do I have to tell the other owner?

Yes — severance is effected by written notice on the other co-owners. Their agreement is not needed, but the notice is.

Which is better for inheritance tax or care fees?

Neither is automatically better, and both interact with other rules in ways that depend entirely on circumstances. This is a question for a solicitor or a regulated adviser, not for a general guide.

How does Northern Ireland work?

Northern Ireland uses the same joint tenancy and tenancy in common concepts as England and Wales, with registration through Land & Property Services. Take Northern Ireland-specific advice on the mechanics of severance there.