Where land is owned by more than two people, a trust of land is created and the legal estate in the property is separated from the equitable (or beneficial) estate.
Beneficial ownership confers rights to occupy the premises, to receive rents and profits and entitlement to the proceeds of sale of land.
It is important that those who decide to purchase property in common with others adopt a suitable ownership structure with regard to the beneficial ownership in the premises.
Co-owners may hold the beneficial interest as either (i) joint tenants or (ii) tenants in common.
It is possible to voluntarily ‘sever’ a joint tenancy, thereby converting it into a tenancy in common, at any time. Severance may also occur automatically in certain situations.
Joint tenants
This type of ownership confers an indivisible share in the premises on all of the owners, who are each entitled equally to the property as a whole.
The ‘right of survivorship’ applies in relation to joint tenancies, meaning that, on the death of one owner, that owner’s interest will pass to the surviving co-owners by law and cannot pass to the deceased’s heirs (under the deceased’s will or pursuant to the laws of intestacy).
This form of ownership and the associated right of survivorship may be suitable for married couples or those in civil partnerships. In certain circumstances, however (such as where one partner has made a larger contribution), a tenancy in common may be preferable.
Tenants in common
Conversely, tenants in common each have a distinct beneficial share in the premises, which may be fixed at the outset or vary during the course of the parties’ ownership.
While the precise shareholding can be inferred by the circumstances surrounding the ownership (for example with regard to the financial contributions made in respect of the premises by the respective co-owners), it is prudent to ensure that the shares are expressly stated.
The shares may be detailed, for example, in the conveyance or transfer itself or, in the case of more complex holdings, a separate Deed of Trust.
The Land Registry will enter a ‘Form A’ restriction on the title to premises held by co-owners, unless the Land Registry is satisfied that beneficial interest in the premises are held by joint tenants.
Where a restriction has been entered on the title, a purchaser in good faith must pay the purchase price to at least two trustees (i.e. co-owners) or a trust corporation, in order to successfully ‘overreach’ any beneficial interests in the premises, which may not otherwise be revealed by the registered title.
Conclusion
Co-owners should consider the appropriate ownership structure both on purchasing premises and throughout the tenure of their ownership.
For assistance, please contact our property teams:
https://www.foskettmarr.co.uk/index.php/our-team/commercial-property-solicitor-essex/
https://www.foskettmarr.co.uk/index.php/our-team/residential-conveyancing-essex/