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Tuesday, February 8, 2022
In the previous 12 months, owing to Covid-19 and the Stamp Duty holiday, there has been a property boom, and this appears to show no signs of stopping with the housing market remaining extremely competitive.
For couples moving in together or relocating to a new family home it will no doubt be an exciting time and there will be a variety of important decisions to be made. Should we laminate or carpet the house? Which utility provider should we choose? Will the spare room be a guest room or home gym?
However, this does not mean that you should forget about the important position of how you and your partner own your property. Whilst a decision will have been made as your conveyancing was ongoing this does not mean the situation cannot change and we would strongly recommend you review this position.
How can I own property as a Co-owner in England or Wales?
You must decide which type of joint ownership you want if you buy, inherit or become a trustee of a property with someone else. You can own a property as either ‘joint tenants’ or ‘tenants in common’.
The type of ownership affects what you can do with the property if your relationship with a joint owner breaks down, or if one owner dies.
Joint Tenants
Under a joint tenancy, both parties own the whole of the property equally. This tends to be the option that most couples choose when they buy together as perhaps it is the more instinctive choice.
With joint tenants the rule of survivorship applies. This means when one of you dies the surviving person from the relationship inherits all the property. For the person who dies, it means that they are unable to leave their property, or a share of it, to anyone else other than their partner. However, when the surviving partner then dies, they are free to leave their property to whoever they choose
If the relationship ends before one of you dies, and you decide to split up, a couple who are joint tenants have options. You might choose to both move out of the property and sell up. In this case, the proceeds are divided 50-50. Or one of you may choose to remain in the property and buy out the 50% share of the other and continue to live there. In instances where both partners want to retain the property and they can’t find a resolution between them, it could become a matter for the courts.
Tenants in Common
With tenants in common you can own different shares of the property, such as 60-40 or 75-25, and the property does not automatically go to the other owners if you die. You can pass on your share of the property in your will.
Tenancy in common can help couples bring more clarity to the situation. For example, one party might have made a larger contribution to the purchase price and want this to be recognised. This can be fixed from the outset (for example, there might be a 25%-75% split of the purchase price) but it can also be altered over time to reflect the contributions they make over the ownership of the property. The appeal of tenancy in common is that it can reflect this. Then, if the property is sold or the couple go their separate ways, they know what percentage of the property theirs is.
Cohabiting couples often mistakenly believe that they share the same rights as a married couple, however in reality if a couple are not married then they do not have legal rights in a relationship unless they put a Cohabitation Agreement in place:
What is a Cohabitation Agreement?
A Cohabitation Agreement is a legal agreement which can be put in place between a couple who live together, but are not married or in a civil partnership. The agreement allows you to enter into a legally binding contract with the person that you live with.
A Cohabitation Agreement can cover matters such as how household costs will be met, ownership of property and what will happen to any shared money and assets if the relationship breaks down.
What are the benefits of putting a Cohabitation Agreement in place?
Cohabitation Agreements can save you a lot of time and money if you decide to separate whilst living together. Without a Cohabitation Agreement and if there is a dispute over who owns a particular asset or share in an asset, Court proceedings may result.
These types of disputes are usually lengthy and could cost you a significant amount of money. Furthermore, if you are unsuccessful in the dispute you could be required to pay for all of the other side’s legal costs.
It could therefore be advisable to put a Cohabitation Agreement in place to protect yourself from the above scenario.
Contact
If you would like any advice on any family or property law matters then please do not hesitate to contact our firm on 0191 232 8451.
Written by Tom Small, Solicitor - Residential Property
Tom graduated from Northumbria University in 2018 with a 1st Class Master’s Degree in Law and qualified as a solicitor in September 2020. During his training at a local Teesside firm, he worked predominantly with the residential conveyancing team covering all areas of conveyancing including experience in dealing with Sharia mortgages.
With Jonathan Fuller, Solicitor - Family Law
Jonathan is a Solicitor in our firm’s Family Department. In addition to offering assistance to the Partners on a variety of different family law matters, Jonathan holds his own caseload. Jonathan has experience in representing parents through Private Law Children Proceedings and Care Proceedings. Jonathan is also currently building upon his existing knowledge of Divorce and Separation Proceedings.
