Blog first published August 2023. Last Updated March 2026.
When purchasing a property jointly, one of the most important decisions you will make is whether to hold the property as joint tenants or tenants in common. This choice will affect everything: from what happens if one of you dies, to how you would divide the proceeds should you separate.
Despite this, many buyers give this question only a moment’s thought, often not even realising the huge implications it could have for their future financial security.
There are two ways to own a property jointly: as joint tenants or tenants in common. Understanding the differences between joint tenants vs tenants in common is essential before you buy, as the option you actually choose will determine your respective shares, what happens to your interest upon death, as well as your rights if you wanted to sell.
Carl Dodd is a specialist in residential conveyancing at our Rawstenall office. In this guide, he explains both options in detail, outlining the key differences involved, and what is most important to consider if you are in the process of purchasing a property with a partner, spouse, business partner, friend, or family member — helping you to decide which option is best suited to your situation.
Joint Tenants vs Tenants in Common: Key Differences at a Glance
Before exploring each option in detail, here is a brief summary of the key differences:
| Feature | Joint Tenants | Tenants in Common |
| Ownership shares | Always equal (no individual shares) | Can be either equal or unequal |
| On death | Automatically passes to the surviving partner. | Passess according to the will or intestacy law. |
| Can share be left in will? | No | Yes |
| Unequal Contributions | Not reflected in ownership | Can be reflected in shares |
| Best suited for | Married couples wanting simplicity | Most other situations |
| Requiring Probate on death | No | Usually |
Joint Tenants: How It Works
People who purchase a home as joint tenants have equal rights to it. The law treats all owners as holding it together, without predetermined shares. As a result, neither owner holds a specific portion, so when the property is sold, each is entitled to half of the sale proceeds, regardless of deposit contributions or mortgage payments.
The Right of Survivorship
The defining feature of joint tenancy is the ‘right of survivorship’. Upon the first death, the property will automatically pass to the surviving joint tenant or tenants. This happens immediately, regardless of any conflicting instructions that may be in the deceased’s will. The property does not form part of the deceased’s estate, and does not need to go through probate.
This automatic transfer makes joint tenancy an attractive option for married couples or those in civil partnerships who want certainty that their partner will inherit the property without any issues, complications, or delays down the line.
Important Considerations for Joint Tenants
Joint ownership as joint tenants is ideal for couples who intend to leave the property to each other upon death and who are making roughly equal financial contributions. However, there are important limitations to consider:
- You cannot leave your interest in the property to anyone other than your co-owner in your will.
- Unequal financial contributions are not reflected in ownership.
- After the first death, the survivor will be able to dispose of the property as they choose, which may not align with the deceased’s wishes.
This final point is particularly relevant for couples with children from former relationships. If you want those dependents to eventually benefit from your share of the property, joint tenancy may not be the right choice.
Tenants in Common: How It Works
People who purchase a property as tenants in common own a specific and pre-agreed share of the whole. Unlike joint tenancy, these shares can be held in equal or unequal proportions, and each owner has complete control over what happens to their share.
Tenants in Common in Equal Shares
‘Tenants in common in equal shares’ means each owner holds a 50 per cent share in the property. As a property owner, you are entitled to dispose of your 50 per cent share in your will to whoever you like. If there is no will, your share will pass to your immediate relatives under the rules of intestacy. Therefore, if you opt for owning a property as tenants in common, it is imperative that you prepare a will to reflect your wishes.
This option may be preferable for families involving step-children, anybody following tax planning advice, or for business partners who want the flexibility to leave their share to specific beneficiaries.
Tenants in Common in Unequal Shares
A tenancy in common in unequal shares should be seriously considered if the parties’ financial contributions to the property at the outset are uneven. For example, if one owner intends to contribute a larger sum of money towards the deposit than the other, or make most of the mortgage repayments, this can be reflected in the ownership shares.
The ownership share will then be reflected in the distribution of the proceeds of sale when you come to sell the property. The arrangements must be discussed very carefully, as unequal financial contributions do not always reflect the full picture. In many cases, one party may contribute in non-financial ways, such as taking on childcare responsibilities or reducing paid employment in order to care for the home or family.
This option is particularly beneficial for couples who wish to protect their contribution, or potentially a gifted deposit from a family member. If parents are helping with a deposit, holding as tenants in common with unequal shares ensures that their contribution is protected if the relationship were to end.
Declaration of Trust for Tenants in Common
The ownership proportions for tenants in common will need to be incorporated into the transfer deed, or in a separate declaration of trust. On the sale of the property, the proceeds will be split in accordance with the transfer deed or declaration of trust.
A declaration of trust for tenants in common is a legally binding document that sets out exactly what share each person owns and what happens in various circumstances. It can cover:
- The size of each owner’s share in the property.
- What happens if one owner wants to sell and the other does not.
- How to handle a breakdown in the relationship.
- How future contributions (such as paying for improvements) will be reflected.
- Whether one owner has the right to buy out the other’s share.
Without a declaration of trust, disputes about ownership shares can be difficult and expensive to resolve. A well-drafted document prepared at the outset provides clarity and protection for all parties.
Tenants in Common: The Problems to Be Aware Of
While being tenants in common offers flexibility and protection, it does come with potential drawbacks that you should understand before making your decision.
- No Automatic Inheritance: Unlike joint tenancy, your share does not automatically pass to your co-owner when you die. This is perhaps the most significant issue when considering tenants in common death implications. This means, the share will usually go through the long and costly probate process. If no will is present, shares pass under intestacy rules, which may not reflect the wishes of the deceased.
- Risk of Unwanted Co-owner: If your co-owner dies and leaves their share to somebody else, you could find yourself suddenly holding 50/50 shares with a person you didn’t choose. This new co-owner has the same rights as the original, including the right to occupy the property and to apply to the court for a sale.
- Potential for Disputes: Without a clear declaration of trust, disagreements will naturally arise regarding ownership shares, who pays for repairs/improvements, and what happens if one party wants to sell. This can be expensive to resolve, potentially requiring court proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
- Additional Costs: Holding as tenants in common requires additional documentation, as you should have a declaration of trust drawn up, as well as a will for each party. Probate costs could also be a factor.
These problems can largely be avoided with proper planning. A well-drafted declaration of trust, appropriate wills, and clear communication between co-owners will address most potential issues before they arise.
Which Should You Choose? A Guide for Different Situations
The right choice depends on your personal circumstances, your relationship with your co-owner(s), and your plans for the future. Here is guidance for common situations:
Married Couples or Civil Partners (no Children from Previous Relationships)
For married couples deciding between joint tenants or tenants in common, joint tenancy is often the natural choice. You both want the property to pass automatically to the survivor, and you likely view your finances as shared. The simplicity of joint tenancy, with no need for probate on the first death, is a significant advantage.
Married Couples or Civil Partners WITH Children from Previous Relationships
Tenants in common is usually more appropriate. This allows each partner to leave their share to their own children in their will, rather than everything passing to the surviving spouse. Without this arrangement, the survivor could potentially leave the entire property to their own children, excluding stepchildren entirely.
Unmarried Couples with Equal Contributions
Either option can work, but the benefits of tenants in common often make it the better choice for unmarried couples. Unlike married couples, cohabiting partners have no automatic rights to each other’s property. If you are tenants in common with a will leaving your share to your partner, you achieve the same outcome as joint tenancy but with more flexibility. If the relationship ends, your share is clearly defined.
Couples with Unequal Deposits or Contributions
Choosing to be tenants in common with unequal shares is strongly recommended. If one person contributes 70% of the deposit but you hold as joint tenants, they have no legal protection for that extra contribution. A declaration of trust should set out the shares and how future contributions will be handled.
When Family is Helping with the Deposit
If your family is gifting money towards the deposit, they may want assurances that this contribution is protected should the relationship break down. Holding as tenants in common, with shares reflecting the contributions, provides this protection. A declaration of trust can specify exactly how a gifted deposit should be treated on sale.
Friends or Siblings Buying Together
Tenants in common is almost always the right choice. Each person maintains a separate share that they can leave to their own family. A declaration of trust should cover what happens if one person wants to sell, whether others have the right of first refusal to buy that share, and how the property will be valued.
Business Partners or Investment Properties
Tenants in common with a comprehensive declaration of trust is essential. Shares can reflect investment levels, and the declaration should address management responsibilities, how income is split, and exit strategies. Tax implications should also be considered, as the way you hold the property can affect income tax and capital gains tax liabilities.
How WHN Solicitors Can Help
What Happens If…
Understanding the practical implications of each ownership type is crucial. Here is what happens in the most common scenarios:
One Owner Dies
- Joint Tenants: The property passes automatically to the surviving owner(s) by the right of survivorship. The deceased’s will has no effect on the property. The survivor simply needs to register the death with the Land Registry to become sole owner.
- Tenants in Common: The deceased’s share passes according to their will, or under intestacy rules if there is no will. This usually requires probate. The new owner of that share could be a family member, friend, or anyone named in the will. The surviving co-owner does not automatically inherit.
You separate or divorce
- Joint Tenants: The presumption is equal ownership (50/50), regardless of contributions. In divorce proceedings, the court has wide powers to divide assets and can look beyond legal ownership. For unmarried couples, however, the position is more difficult, and equal ownership may not reflect the reality of contributions.
- Tenants in Common: Your respective shares should be clearly defined, either in the transfer deed or a declaration of trust. This provides clarity on separation, though in divorce the court still has powers to adjust ownership.
Only One Party Wants to Sell
This can be challenging under either arrangement. As tenants in common, you technically have the right to sell your individual share, though finding a buyer for a partial interest in a residential property is, practically, very difficult. Either party can apply to the court for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
A well-drafted declaration of trust can help by setting out an agreed process: perhaps requiring a minimum notice period, giving the other owner first option to buy, or specifying how the property will be valued.
Circumstances Change (Debt, Care Home Fees, Bankruptcy)
If one owner faces financial difficulties, creditors may be able to force a sale of the property to recover debts. With tenants in common, only that person’s share is at risk (though in practice this often still results in a forced sale).
For couples concerned about potential care home fees, holding as tenants in common can sometimes offer protection, as only the share belonging to the person needing care may be assessed. However, this area is complex and you should take specific advice.
Can You Change from Joint Tenants to Tenants in Common?
Yes. If you are a joint tenant in a property, you can end the joint tenancy at any time and convert it to a tenancy in common. This is called ‘severance of joint tenancy’.
Severance of Joint Tenancy
You may need to change from joint tenants to tenants in common if you divorce or separate from your partner but still own property together and want to leave your share of the property to someone else. Importantly, you can make this change without the other owner’s agreement. You simply serve a written notice of severance and apply to the Land Registry to add a Form A restriction to the title.
Following severance of joint tenancy without any other agreement, the default position is that each person becomes a tenant in common with a 50% share, regardless of original contributions. If you want different shares, you need to agree this with your co-owner and record it in a declaration of trust.
Changing to joint tenants
Alternatively, you may want to change from tenants in common to joint tenants. This may be because you have since married and want the benefits of owning a home as one family unit with the automatic right of survivorship. Unlike severance, this change requires the agreement of all owners. The Land Registry will need to remove the existing restriction on the title.
If you are considering any change to your ownership structure, you should also review your wills to ensure they reflect your updated intentions.
Protecting Your Investment
Whatever ownership structure you choose, there are steps you should take to protect your position:
- Make a Will: A tenants in common will is essential to ensure your share passes to your chosen beneficiaries. Even joint tenants should have a will for their other assets.
- Consider Declaration of Trust: If you are tenants in common, this document provides essential clarity about shares and what happens in different circumstances.
- Review Regularly: Life changes. Marriage, children, divorce, inheritance — all of these can affect what arrangements are right for you. Review your ownership structure and related documents whenever circumstances change.
- Seek Professional Advice: The interaction between property ownership, wills, and tax can be complex. A solicitor can ensure your arrangements work together effectively.
How WHN Solicitors Can Help
At WHN Solicitors, we guide clients through every aspect of buying a property together. Our residential conveyancing team can advise on the right ownership structure for your circumstances and prepare any necessary documentation, including declarations of trust. We also work closely with our private client team, who can prepare wills that work alongside your property arrangements.
Carl Dodd is a specialist in residential conveyancing and assists clients with conveyancing transactions and with residential property and sales.
For further advice and information to consider the best property ownership option for you, please contact Carl at 01200 408300 or by email at carl.dodd@whnsolicitors.co.uk. Alternatively, fill in our contact form and a member of the residential conveyancing team will be in touch with you as soon as possible.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
