Are you looking to buy a property with somebody else, and wondering what the difference is between tenants in common and joint tenants? You’ve come to the right place.
Here at Bespoke Law Services, we’ve put together a simple guide to tenancy in common vs joint tenancy. We’ve set out to answer the most commonly asked questions, including when these types of ownership are applicable, what happens in the event of a death, and how this choice affects what you can do with a property in the long term.
Key Differences Between Tenants in Common and Joint Tenants
Tenants in Common Meaning
Tenancy in common refers to when you each own a defined share, which may be equal or unequal, of a property, and can refer to two or more people owning a property.
For example, one person may own 60% of the property while another owns 40%.
Each person can act independently when making decisions about the property, as the ownership is separate – for example, someone may decide to mortgage or sell their own share, and they wouldn’t legally need to consult others in the tenancy before doing so.
When the property is sold, each of you will receive a percentage of the sale proceeds, depending on how the ownership is divided.
In the event of one of you passing away, your share can then be passed to anyone of your choice. This is likely to be specified in your will – it’s important to note that it doesn’t automatically go to the other owner.
Joint Tenants Meaning
In contrast, joint tenancy refers to when you and another person own the whole property together – 50/50.
This type of tenancy means that it doesn’t matter how much of the deposit you both have paid towards the property, or who pays more of the mortgage. When you own as joint tenants, all the owners have equal rights to the whole property.
Therefore, all decisions about the property will need to be made together.
If one of you dies, the property automatically passes to the survivor (this is known as the Right of Survivorship).
What is the Right of Survivorship in Joint Tenancy?
This legal term refers to a rule that applies only to joint tenants. It states that in the event of one of the owners’ deaths, the property will automatically transfer to the surviving joint tenant.
This is one of the biggest differences between tenancy in common and joint tenancy, as tenants in common do not receive the Right of Survivorship.
Notably, this transfer also happens by law, and not through a will, meaning one owner cannot leave their share of the property to someone else in their will.
This is particularly important if, for example, you or the other owner have been previously married and have children from that marriage, and you want to pass your property to your children equally.
In this instance, joint tenancy would not be the smartest choice – when one of you dies, the property automatically goes to the other person. It then becomes part of their estate when they die. Therefore, the deceased owner’s children would not be legally entitled to the property.
Advantages and Disadvantages of Tenants in Common
To make it clearer when tenancy in common is the right choice, the table below highlights when it would be a great fit, and when it wouldn’t be suitable for you:
| Advantages | Disadvantages |
| Buying outside of marriage or civil partnership When you want clearer protection in case circumstances change in your relationship. | Potential Disputes If agreements haven’t been made clear about who owns what, disputes may occur later. A Declaration of Trust can be extremely helpful here. |
| Unequal Deposits When you’ve contributed unequal deposits, your ownership can reflect that. | Dying without a will This could mean your share of the property may have to go through probate, which is time-consuming and costly. |
| Inheritance When you want to be able to leave your share of the property to someone else (e.g. children, grandchildren, a trust). | Laws of intestacy These could apply to your share of the property if you die without a will, meaning your share may not go to who you’d like it to. |
| Independent Selling When you want the ability to sell, gift or borrow against your own fractional share without needing approval from the other tenants. | Debt or Creditor Exposure If your co-owner files for bankruptcy, goes through a divorce or has heavy debt, creditors may force the sale of the whole property to collect on the co-owner’s debt. Again, a Deed of Trust can prove invaluable here. |
Advantages and Disadvantages of Owning as Joint Tenants
Similarly, here’s a breakdown of the reasons why joint tenancy may or may not benefit you when buying a property:
| Advantages | Disadvantages |
| Right of Survivorship When you’d like ownership of the property to instantly and automatically pass to the surviving owner in the event of death. | Equal Ownership Only Even if someone has paid a much larger deposit, the proceeds from the property sale will be split 50/50. |
| Simpler Sales When you’d want all owners to be treated as a single legal entity, and agree to a sale. | No individual sales You won’t be able to sell or transfer your share without your co-owner’s full cooperation. |
| Avoids Probate When you’d like to avoid probate, the transfer is automatic, meaning no time-consuming and costly process. | No Inheritance Control You won’t be able to leave your share of the property to other people in your will (e.g. children from a prior marriage). |
| Shared Responsibility When you want all co-owners to be jointly liable for the mortgage and maintenance of the property. | Forced Sales via Creditors If one owner goes bankrupt or incurs significant debt, creditors can force the sale of the entire property. |
In summary, there is no one-size-fits-all approach to buying a property with someone. You need to consider how you want the property shares to be divided and what should happen to your share of the property in the event of your death.
If you’d like to discuss your situation with an expert, call us on 0345 373 2030 or email us at enquiries@bespokelawservices.co.uk. One of our trusted conveyancers will get back to you with personalised information about your situation and provide advice on next steps.
Tenancy in Common vs Joint Tenants: FAQs
Which is better – tenancy in common or joint tenancy?
That depends on your circumstances.
A joint tenancy may be better for people who want to split the property 50/50 and ensure it goes to the other owner upon death.
Tenancy in common may work better for people who want to own a defined share of a property and specify who their share goes to in the event of their death.
Doesn’t the phrase ‘tenants’ refer to renting rather than buying?
While it’s true that the word ‘tenants’ is often used in the renting market, in this context, it actually refers to the old legal term meaning ‘owner’.
This refers only to those buying their own home rather than renting.
Can you change from joint tenants to tenants in common, and vice versa?
Yes, it’s possible to make these changes – converting from joint tenants to tenants in common is known as “severing the joint tenancy”. Depending on whether you do it yourself or hire a lawyer, this may be at a cost.
However, it’s highly recommended you use a trusted lawyer, such as Bespoke Law Services, to help navigate this change. This way, your property share will be protected, and we can ensure there’s no room for future disputes over the property.
What are the tax implications of tenants in common vs joint tenants?
For joint tenants, rental income and any profit from the sale of the property are usually taxed equally between the owners.
For tenants in common, tax is generally based on each owner’s share of the property, which can be useful if the owners hold different percentages.
Tenants in common can also offer more flexibility for inheritance tax planning, as each owner can leave their share to whoever they choose.
Which is better for first-time buyers – joint tenants or tenants in common?
Many first-time buyers tend to choose tenancy in common, especially if they are unmarried or buying with family or friends. However, this option won’t suit everyone.
The best option generally depends on whether you and your co-owner want equal or different shares in the property. It’s also important to consider what you’d like to happen to your share if you were to die.
We can provide tailored legal advice for your situation here at Bespoke Law Services. Get in touch with one of our expert conveyancers for advice today.
