THE JOINT TENANCY
In the eyes of the law, joint tenants do not have shares in the land or, indeed, any individual existence. They are regarded together as making up a single legal entity, i.e. a sole owner: They are together wholly entitled, but individually they own nothing. Of course, they do have rights which are exercisable against each other (e.g. a monetary claim on any eventual sale). The outstanding feature of the joint tenancy is the right of survivorship
THE TENANCY IN COMMON
This form of co-ownership is favoured by equity and entails that each co-owner has a separate share in the property. A tenancy in common differs from a joint tenancy in the following ways:
Tenants in common hold in individual shares, i.e. they have distinct shares in the land that has not yet been divided between the co-owners. Although each tenant in common has a separate interest, it is not possible to say who owns what piece of the land. However this can be remedied by entering into a “Trust Deed” which would state who owns how much of the net equity. The size of the shares of each tenant in common need not be equal. For example, one tenant in common may have a 60 per cent share whereas the other may have a 40 per cent stake.
There is no right of survivorship. The size of share of a tenant in common is fixed and unaffected by the death of any other tenant in common. The tenant in common can leave his share by making a Will and, if not, it will pass on intestacy to his next of kin
When two or more persons purchase a property together it is often the case there is no actual discussion between them as to who should own what. This can be a problem later if the relationship breaks down. Unless a Trust Deed has been drawn up stating who owns how much of the property the Court (if things were to go down that route) may well infer that it was intended a 50/50 split was intended. However, one party may have put into the pot at the beginning all the equity from a property previously owned in their sole name or that the deposit was paid by one party or even that one party’s parents donated towards the deposit and would want their son/daughter to retain that donation upon such a breakdown. This can all be done quite easily by setting out the details at the beginning in a Trust Deed which would state exactly what each intended from the outset. This way YOUR intentions will be recorded.
