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GLOSSARY

Tenancy in common definition

Published by a LexisNexis Property expert

What does Tenancy in common mean?

Ownership of land by two or more persons so that each is entitled to a share of the proceeds.

This type of ownership is only capable of existing in equity. Shares may be equal or unequal. Either owner can apply for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996.

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Establishing a beneficial interest (joint ownership)

Where two or more people together own real property, they hold it under a trust of land. Where property is held on a trust of land, the legal estate and equitable estate are separate. The legal estate must be held by the co-owners as joint tenants. The beneficial interest in the property can, however, be held by the co-owners either as:•joint tenants, or•tenants in commonIf the co-owners are joint tenants, each has an indivisible share in the property, where each owns the whole, rather than an identifiable share of the property. The right of survivorship applies so on the death of one joint tenant, the deceased's interest in the property passes automatically to the other(s).Where the beneficial interest is held as tenants in common, interests can be unequal, and the share of one does not pass to the survivor but is part of the deceased's estate.A tenancy in common may arise on the original transfer or conveyance where there is an express declaration of trust, or where an existing joint...

Severance of a joint tenancy

Severance is the process by which a joint tenancy is converted into a tenancy in common. It is a matter of evidence whether severance has occurred.There are limitations:•there can be no severance by will•only a beneficial/equitable interest can be severed—a legal estate must be held by way of joint tenancy (see section 36(2) of the Law of Property Act 1925 (LPA 1925) and Practice Note: Establishing a beneficial interest (joint ownership)).The consent of the other joint tenants is not required for an individual co-owner to sever a joint tenancy. Any joint tenant can sever the tenancy at any time.Severance by statutory notice It is usual to consider whether a joint tenancy should be severed when advising on relationship breakdown. Severance may be effected by statutory written notice under LPA 1925, s 36(2). This is the method most commonly used. The notice need not be in any particular form; it need not even use the term severance provided that it shows an immediate intention to terminate the joint tenancy. In Quigley...

Discover our 3 Practice Notes on Tenancy in common

Declaration of simple trust of land on severance of joint tenancy of property subject to a mortgage

Declaration of simple trust of land on severance of joint tenancy of property subject to a mortgage Date [date] Parties 1 [name of first joint tenant] of [address] 2 [name of second joint tenant] of [address] (together referred to as Joint Tenants) background (A) By a [conveyance OR transfer] dated [date] made between (1) [name(s) of seller(s)] and (2) the Joint Tenants, the property described in the Schedule (Property) was [conveyed OR transferred] to the Joint Tenants in fee simple as beneficial joint tenants. (B) By a mortgage (Mortgage) dated [date] made between (1) the Joint Tenants and (2) [name of lender] (Lender), the Property was charged to the Lender to secure payment to the Lender of the sums specified in the Mortgage. (C) The Joint Tenants have agreed that, as from the date of this Deed, the joint tenancy is severed and the Property, subject to the Mortgage, is held by them as tenants in common in equal shares, on the further terms...

Declaration of trust—tenancy in common

Declaration of trust—tenancy in common Date [date] Parties 1 [name of first joint tenant] of [address] 2 [name of second joint tenant] of [address] (together referred to as Joint Tenants) background (A) By [ [a conveyance OR transfer] OR an assent] dated [date] made between (1) [[names of seller(s)/transferor(s)] OR [name(s) of personal representative(s)]] and (2) the Joint Tenants, the property described in the Schedule (Property) is vested in the Joint Tenants in fee simple on trust for themselves as beneficial joint tenants. (B) The Joint Tenants have agreed that, as from the date of this Deed, the joint tenancy is severed and the Property is held by them on trust for themselves as tenants in common in equal shares, on the further terms of this Deed. 1 Tenancy in common As from the date of this Deed, the Joint Tenants hold the Property in fee simple in trust for themselves as beneficial tenants in common in equal shares. 2 [ HM Land Registry The Joint Tenants...

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