Joint ownership - will it be as safe as houses?

Joint property can be owned in two ways; as tenants in common or as joint tenants. Tenants in common own a share in the property which means that they may deal with that share, for example upon the death of a tenant in common that share remains as part of their estate. On the other hand, joint tenants own the property together but act as one owner and, importantly, when one dies the whole of the property automatically passes to the survivor.

For many reasons buying a house as a tenant in common has become more frequent and is not necessarily a problem in itself. However, the sensible purchaser will protect themselves (and, arguably, their partner) by recording the (agreed) proportion of ownership in a “Declaration of Trust” in the hope that they never need to rely on it. Those who avoid the uneasy conversation and take the road paved with good intentions to ‘do it later’ all too often find that their journey ends up taking a nasty turn.

When tenants in common fall out and there is not a declaration of trust the courts will often get involved. Such a scenario arose in the case of Kernott v Jones; a cautionary tale for all would-be tenants in common.

Patricia Jones was a hairdresser. In 1980, when she was 26, Pat met Leonard Kernott. Len worked as a builder in the winter and sold ice-creams in the summer, claiming benefit when between jobs. In 1985, after Pat and Len had had a little girl together, they bought a house in Essex for £30,000. Pat put in £6,000 from the sale of her caravan and the rest came from a mortgage. The house was registered in joint names as tenants in common. Pat and Len then had a little boy but still did not marry. At this time Len used to pay Pat £100 a week and Pat paid all the bills, including the mortgage. In 1993, after 8 years of living together, Pat and Len separated. Len moved out and bought his own place. There was no declaration of trust and neither sought to resolve the issues surrounding ownership of the property.

Pat stayed in the property and carried on bringing up the children there with no child support or financial help from Len. In 2006, after the children had left home, Len put in a claim for a half share of the Essex property (now worth £245,000) and a bitter dispute went to the courts.

The letter of the law says that if a couple owns a house as tenants in common, even if they have made unequal contributions, they intend it to be held equally unless they expressly agree otherwise. If it were a case of dividing the proceeds in 1993, Pat and Len would certainly have got half each. Over a decade later many would think that the proportion of ownership changed with the circumstances. Indeed, Pat argued that 12 years of bringing up the children in the house, maintaining it, cleaning it and paying the mortgage on her own meant that the presumption of equal ownership should be denied. Put simply Pat’s plea was: “what about all the money she had put in?”


The first judge to hear the case saw Pat’s point, and awarded 90% of the house to her (the rest to Len). Len appealed and his appeal was upheld; the majority (two judges to one) pointing out that this was not a divorce case but one on the law of trusts and property. Therefore, unless the parties had made some other agreement, their ownership was just what they had originally declared it to be by putting it into joint names – 50/50.

A harsh lesson learnt by Pat and one of which everyone should take note. A further word of caution, problems can also arise “from the grave”.

Tenants in common may happily own property without a declaration of trust and never feel the inclination to sue each other but, unlike joint tenants, if one of the owners dies their share of the property remains within their estate. If the terms of the deceased’s will mean that this passes to the surviving tenant in common then this is straightforward enough. If, however, the share of the property is to pass to another then a court application may be required so that the exact extent of this share can be ascertained. If the value of the property is significant, it is not unforeseeable that the surviving tenant in common, or beneficiary of the deceased’s share, will seek to maximise their own proportion of ownership. The road ahead could be tortuous; more so if ‘negotiations’ overshadow the death of the late tenant in common. In addition, the beneficiary may seek to realise their interest in the property (i.e. sell it) which could proceed to litigation if the surviving tenant in common does not agree to the sale or cannot raise the equity to purchase the other share.

The moral of the story; however awkward it may feel at the time, get your intentions recorded. Where there is a tenancy in common there should also be a declaration of trust; recording and agreeing ownership now can save much grief and expense at a later date.

If you would like to know more about joint ownership and trust documents please contact Claire Read on 01245 453835