If you own your home as joint beneficial tenants your co-owner automatically takes your ‘share’ if you die before them. You cannot make a valid gift of your ‘share’ in your Will. However, you can easily change your joint ownership to become tenants in common. As a tenant in common, you are free to gift your share of the home to whoever you wish.
How is your property held?
If you hold your property as joint tenants with another person, this means that both owners own 100% of the property, not a divided share. You have equal rights to the whole property, and if the property is sold you will each be entitled to an equal share of the proceeds.
A joint tenancy creates rights of survivorship. The result is that when one owner dies the remaining owners will automatically own the whole property. This means that a joint tenant cannot gift their interest in the property to anyone by their Will.
Tenants in Common
If you hold your property as tenants in common, you will each have a divided share in the property. This is very often an equal share, so 50/50; but you might choose to own the property in unequal shares. This is usually the option for people purchasing a property together and contributing different amounts towards the deposit, for example, you and your partner could agree on a split of 60/40 or 70/30.
As a tenant in common, each owner can deal with their share in the property separately, gifting their share to their own beneficiaries or to a protective trust in their Will.
How can I check how my property is held?
Your Carisma Wills estate planning consultant will check the title register on the HM Land Registry and let you know how you hold your property. If your property is not registered, it will be necessary to check the paper copy of your title deeds.
Can you change from joint tenants to tenants in common?
Yes, and it’s a fairly simple process to do so.
You will need to serve notice on your co-owner/s. This is done with a notice of severance – this will note all the relevant property details, the reason why you are severing and will refer to the UK legislation that permits severance.
If your property is registered on HM Land Registry, it is important to update the title register. This is done using Form SEV, and there is no HMLR fee to make the change. A common misconception is that the SEV form itself is evidence of the severance to tenants in common but this is not the case. The notice of severance is the document that evidences your intention to own the property as tenants in common.
The register is amended to include a Form A restriction which states:
Form A (Restriction on dispositions by sole proprietor)https://www.gov.uk/government/publications/notices-restrictions-and-the-protection-of-third-party-interests-in-the-register/practice-guide-19-notices-restrictions-and-the-protection-of-third-party-interests-in-the-register#appendix-b-standard-form-restrictions
No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.
Do I have to instruct a solicitor to carry out the severance?
No, the preparation of your severance notices can be carried out by your estate planning consultant.
Do the home owners have to agree to the severance?
No. There may be a situation where a home is owned jointly by cohabiting partners or spouses whose relationship has broken down. It is possible for one co-owner to sever the tenancy and this is known as a unilateral severance.
One co-owner can serve a written notice of the change (notice of severance) on his/her partner, complete the SEV form, prepare any supporting documents and send it all to HM Land Registry’s Citizen Centre. Supporting documents needed include a letter certifying that notice has been served at the co-owner’s last known home or business address in the UK. It is important to send a unilateral notice by recorded delivery so there is proof that it has been served. The reason for the severance does not need to be disclosed.
What if the property is not registered on HM Land Registry?
If your home is not registered with the land registry, you serve notice on your co-owner but you cannot log the change on HM Land Registry. The SEV form is only completed for registered properties. We recommend you register your home during your lifetime to protect your legal ownership and avoid any future issues. Ask your estate planning consultant for a referral to one of our trusted conveyancing partners.
What happens if I die before the title register is changed?
If a notice of severance has already been signed, there is evidence of your intention to hold the property as tenants in common. It is the notice of severance and not the SEV form that indicates the intention to hold the property as tenants in common.
If you do not sever the tenancy by notice before you die, the property would still be held as joint tenants and your share would automatically pass to the surviving co-owner.
What if the title register is in my former/maiden name?
There is no need to wait for the name to be changed before the title is severed. The notice of severance and SEV form can be completed in your married name. You will need to complete and send form AP1 to HM Land Registry to note your change of name. This can be sent at the same time as the SEV form so it can all be processed together. You will need proof of your name change, for example, your marriage certificate or deed poll certificate.
How long will it take to become tenants in common?
The notice of severance will be drafted by your estate planning consultant so it can be ready within a day or two if necessary. As soon as the notice is signed it provides evidence of your intention to hold the property as tenants in common. The SEV form is a safeguard to ensure the change is reflected on the title register.
You and your estate planning consultant will receive confirmation from HM Land Registry that the change has been made. This could take several weeks.
How do I make the change from joint tenants to tenants in common?
Get in touch and we will take you through our straightforward process. We aim to be transparent about fees and costs – check out our fees on our website.
When you’re ready to move forward, please call, email, or connect with us on social media.