Legal Comment by Mark Illidge

August 2006

The distinction between 'joint tenancy' and 'tenancy in common' is a vital consideration for property owners and purchasers.  Its importance stems from the fact that how a person holds a property determines how he or she may deal with it.  The difference between these types of co-ownership is set out below:-

Joint tenancy

The distinguishing feature of joint tenancy is that each joint tenant holds the entire property jointly with another or others. There is no distinction between the property held by each tenant.  This type of holding is commonly used by couples.

Joint tenancy is subject to the 'Doctrine of Survivorship', which means that upon the death of one joint tenant that person's interest is incorporated into the share of the surviving joint tenant or tenants. 

This is beneficial if one joint tenant does not have a Will or has a Will that does not effectively deal with the property, as the property will automatically pass to the other joint tenant or tenants. 

The main drawback of joint tenancy is that the property cannot be dealt with by a joint tenant acting alone and therefore cannot be given away by Will except by the last surviving joint tenant.

Tenancy in common

In contrast, tenants in common may hold a property in equal or unequal shares eg. 1/2 and 1/2, or 1/3 and 2/3.  This type of co-ownership involves two or more persons owning separate interests in the same property, although each person does not have exclusive possession of any part of the property.  The benefit of this type of ownership is that each party is able to deal with his or her share as they wish and their interest can be given away by Will. 

Accordingly, proper consideration should be given to this issue prior to acquiring property or making your will. Changing the manner in which you hold existing property is also a relatively straightforward procedure should you wish to do so.

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