Co-own a property? Should you sever a joint tenancy if you separate?
Many couples who buy a home together, own it together as joint tenants.
A joint tenancy is a legally binding contract and needs to be looked at carefully in the event of divorce or separation.
Severing a joint tenancy and converting it to a tenancy in common in equal shares, means you can leave your share of the property to whoever you want and prevent it passing automatically to your ex-partner.
What does being joint tenants mean?
Joint tenants do not own a specific share in the property, they share the whole of a property together, rather than owning separate, distinct shares.
However, there is a presumption that it is owned equally. This means that if one party dies, the whole property passes to the surviving joint tenant(s) under survivorship rules, rather than passing under a Will or on intestacy.
This is the case even if a Will specifies that the property should go to other beneficiaries.
What are the benefits of severing a joint tenancy if you separate?
Many couples when separating don’t want the whole property to pass to their now ex-partner should something happen to them in the immediate future.
It is therefore sensible to sever a joint tenancy whilst you decide how best to deal with the property post separation.
Severance of a joint tenancy means that the joint tenancy is converted into a tenancy in common.
How do you sever a joint tenancy?
A notice can be served unilaterally by a joint tenant without the need for consulting the other joint tenant(s).
The party serving the notice must ensure they comply with the legal requirements of section 196 of the Law of Property Act 1925. The notice must be in writing and in a valid form. The serving party must ensure the notice is properly addressed to the recipient and validly delivered to the correct place of abode or business.
What happens once the notice to sever a joint tenancy has been served?
Once you have given valid notice to the joint tenant(s), the notice will need to be sent to the Land Registry so that it can amend the title deeds.
You don’t need to wait for the signed notice to be returned from the joint tenant(s). The Land Registry do not charge a fee for this.
Is it important to update your Will if you sever a joint tenancy?
Absolutely. If you are severing a joint tenancy, it is sensible to alter your will to ensure that your interest in the property passes to your beneficiaries, in accordance with your wishes. If you do not have a Will, it is advisable to obtain one.
Get in touch
For help or advice on making or updating your Will, please contact any member of our Wills, Probate and Mental Capacity team.
For specialist legal advice on severing a joint tenancy, please contact Assistant Solicitor, Rebecca Max, part of Wards Solicitors’ acclaimed Cohabitation team.
Email Rebecca: Rebecca.Max@wards.uk.com
Call Rebecca: 0117 929 2811