Joint Tenants vs Tenants in Common
When two or more people buy a property together in England and Wales, they must choose one of two legal structures: joint tenancy or tenancy in common. This is not an optional detail — your solicitor will ask you to decide before completion, and the choice has major consequences.
As joint tenants, you each own the whole property equally. There are no separate shares. If one owner dies, their interest passes automatically to the surviving owner(s) by the 'right of survivorship' — regardless of what their will says. This is the default choice for married couples and is simple and clean.
As tenants in common, each owner has a distinct share of the property, which can be equal or unequal (for example, 60/40 or 70/30). Each person's share can be left to anyone in their will. If one owner dies, their share passes according to their will (or intestacy rules if they don't have one) — it does not automatically go to the other owner. This is the appropriate structure when contributions are unequal, when you're buying with a friend, or when you want to protect your share for your children from a previous relationship.
| Feature | Joint Tenants | Tenants in Common |
|---|---|---|
| Ownership | Equal, undivided | Defined shares (can be unequal) |
| On death | Passes automatically to survivor | Passes via will or intestacy |
| Can be severed | Yes, by either party | N/A — already separate shares |
| Common for | Married couples | Unmarried couples, friends, investors |
| Stamp duty | Based on total price | Based on total price |
Declarations of Trust
A declaration of trust (also called a deed of trust) is a legal document that records the financial arrangements between co-owners. It's particularly important for tenants in common, but can be useful for joint tenants too. It typically sets out who contributed what to the deposit, how the mortgage payments are split, what happens if one person pays more over time, and how the proceeds will be divided on sale.
Without a declaration of trust, disputes about who owns what can end up in court. The court will look at financial contributions, intentions at the time of purchase, and subsequent conduct — but the outcome is uncertain and the legal costs are high. A declaration of trust costs £300 to £600 and provides clarity that can prevent a £20,000 legal dispute.
A common scenario: one person contributes £50,000 to the deposit and the other contributes £10,000, but they split the mortgage equally. A declaration of trust can specify that on sale, the first person gets their extra £40,000 back before the remaining equity is split 50/50. Without it, the split is ambiguous.
Unequal Contributions and Mortgage Responsibility
Unequal deposits are very common, especially when parents help one buyer but not the other, or when one person has been saving longer. The mortgage lender doesn't care about this — both borrowers are jointly and severally liable for the full mortgage amount. If one person stops paying, the other must cover the entire payment or face repossession.
This joint and several liability means the mortgage is not simply split between you in the eyes of the lender. If your co-owner loses their job, goes bankrupt, or simply stops contributing, you're legally responsible for the whole debt. This is why a declaration of trust and clear communication about what happens in various scenarios are so important.
If one party is contributing significantly more to the deposit or mortgage payments, you should discuss and document how this is reflected in the ownership shares. Options include fixed shares (e.g., 65/35), a floating share that adjusts based on contributions, or a priority return where one party gets their extra contribution back first.
What Happens If You Separate
For married couples and civil partners, the family court has wide discretion to divide property as it sees fit on divorce, regardless of how the legal ownership is structured. The court considers the length of the marriage, each party's needs, contributions (financial and non-financial), and the welfare of any children. Joint tenancy vs tenancy in common is less critical here because the court can override it.
For unmarried couples, there is no equivalent family court jurisdiction. If you're tenants in common with a declaration of trust, the trust document governs the split. If you're joint tenants with no trust, the starting point is a 50/50 split, but this can be challenged in court based on contributions — an expensive and uncertain process.
If one co-owner wants to sell and the other doesn't, the owner wanting to sell can apply to the court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale. The court will consider all circumstances, but in most cases where the relationship has broken down and there are no children living in the property, an order for sale will be granted.
What Happens If One Owner Dies
Under joint tenancy, the surviving owner automatically inherits the deceased's interest by right of survivorship. No probate is needed for the property itself — the survivor simply provides a death certificate to the Land Registry. This is straightforward but means the deceased cannot leave their share to anyone else, even if their will says otherwise.
Under tenancy in common, the deceased's share passes according to their will (or intestacy rules). This means the surviving co-owner could end up co-owning the property with the deceased's beneficiaries — potentially their children from a previous relationship, their parents, or even a new partner named in the will. This is why tenants in common should always have up-to-date wills.
Life insurance is worth considering for any co-ownership arrangement. A joint life insurance policy (or two single policies) can provide the surviving owner with funds to buy out the deceased's share from their estate, avoiding the need to sell the property at a difficult time.
Practical Steps Before You Buy Together
Have an honest financial conversation before you start looking at properties. Discuss your respective savings, debts, incomes, and how you plan to split costs. Talk about what happens if one of you wants to sell, if you separate, or if one of you can't keep up with payments. These conversations are awkward but far less so than having them through solicitors later.
Instruct your solicitor to prepare a declaration of trust alongside the conveyancing. Many conveyancers offer this as an add-on service. Make sure it covers: deposit contributions, mortgage payment splits, how equity is divided on sale, what happens if one person wants to sell and the other doesn't, and how improvements or overpayments are treated.
- ▸Choose ownership type: Joint tenants for equal ownership with right of survivorship; tenants in common for defined (potentially unequal) shares.
- ▸Get a declaration of trust: Record deposit contributions, payment splits, and sale proceeds division. Costs £300 to £600.
- ▸Write or update wills: Especially important for tenants in common — your share doesn't pass automatically to the other owner.
- ▸Consider life insurance: Ensures the surviving owner can buy out the deceased's share without selling the property.
- ▸Understand joint and several liability: Both borrowers are fully responsible for the entire mortgage, not just their 'half'.
Key Takeaways
- ✓Joint tenants own equally with automatic right of survivorship — good for married couples
- ✓Tenants in common have defined shares that can be unequal and pass via their will
- ✓A declaration of trust costs £300 to £600 and prevents disputes worth thousands
- ✓Both co-owners are jointly and severally liable for the full mortgage amount
- ✓Unmarried couples have far fewer legal protections — a declaration of trust is essential
- ✓Tenants in common should always have up-to-date wills to control who inherits their share