If you wish to hold your property as Tenants in Common in unequal shares you should complete a Declaration of Trust.
A Declaration of Trust is a legally binding document which clearly outlines what you each own and how the value of the property would be divided should you ever split up or sell up.
A Declaration of Trust records what each tenant has contributed to the property including the initial deposit needed for the property, the mortgage repayments and/or the financial upkeep of the property. It is therefore an incredibly important document if one person has put in more money than the other.
Without a Declaration of Trust, co-owners could end up facing a potentially complex and unpleasant legal situation. If you don’t detail your individual stakes in the property and then later disagree on who should receive what, you may need to go through a very expensive and lengthy court case to sort it out.
There are two ways in which you can own property together; as Joint Tenants or as Tenants in Common (sorry these are confusing terms - it’s nothing to do with landlords and tenants, just the way the law describes ownership of joint property). But before you make the decision we will make sure you have all the relevant information to make an informed choice.
Joint Tenants
The owners share equal ownership of the property
Example: Kerry and Mike have bought their first house together in 1948, sadly Mike has recently passed away. As they were joint owners, Mike’s share of the property is automatically transferred to Kerry.
Potential repercussions: Each tenant can independently sever the Joint Tenancy agreement at any point without the consent of the other(s) by serving a Notice of Severance in accordance with section 36(2) of the Law of Property Act 1925. If this happens your home will transfer to Tenants in Common.
Tenants in Common
Each co-owner owns a specific share of the property
Example: Phil and Gayle have bought their first house together – woo! They’re unmarried and both have made unequal contributions to the deposit, and their solicitor has advised them to hold the property as Tenants in Common. They decide to split the property 50/50, meaning if they decided to sell the property for £200,000, they would each receive £100,000 (if no mortgage).
Potential repercussions: Your share can go to whomever you wish – with this option it is important that you have a Will prepared in the event that one of you passes away. It is also vital that you obtain a Declaration of Trust.
With over 10 years’ experience in the legal industry, Melissa qualified as a Solicitor in 2021 and specialises in all aspects of Private Client matters, including the preparation of Wills, Probate, Estate Management and Lasting Power of Attorney.
