Joint Tenancies v Tenancies In Common

INTRODUCTION AND CO-OWNERSHIP

Co-ownership is where any two or more persons each simultaneously owns a given estate in land and are thus entitled to an interest, or interests, in that estate. In England and Wales there are two forms of concurrent co-ownership: joint tenancies, and tenancies in common. Concurrent co-ownership of both legal and equitable interests requires a trust of land (Law of Property Act 1925, ss. 34, 36). Since the passing of the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996, a trust of land is established where there are two or more legal owners of the land, and a trust of land is established where there is one legal owner but more than one equitable owner.

This chapter will first discuss joint tenancies, and touch upon the following areas: survivorship, how and why a joint tenancy might be changed, the four unities, and the issues surrounding family breakdowns and joint tenancies.

This chapter will then go on to discuss tenancies in common, and will discuss the following points: that there is no right of survivorship; that the only unity required in tenancies in common is that of possession; tenants in common have rights of occupation and enjoyment; no tenant in common will ordinarily be expected to pay rent for occupying the property; contributions towards the maintenance of the land may be taken into account on sale; and equity may recognise a tenancy in common even though the legal title is necessarily shared between joint tenants.

Severance is not discussed here, as that is addressed in full in the chapter on Severance. Finally, take note that the reference to tenants here has nothing to do with tenants and landlords. Tenant here simply means ‘owner.’

JOINT TENANCIES

These types of tenancies are a type of co-ownership of land, under which each tenant - or ‘joint tenant’ - is entitled, together with the others, to the whole estate (Burton v Camden LBC [2000] 2 AC 399, HL per Lord Millett). A joint tenancy is able to exist as either a legal or equitable interest, or both. In joint tenancies, no joint tenant is said to hold a share in the land; instead, each is invested with the whole interest in the land (Wright v Gibbons (1949) 78 CLR 313 (HC of Australia) per Dixon J), regardless of whether their interest is in the freehold or the leasehold. Because the joint tenants together are treated as a single owner - given there are no shares - they are deemed in the eyes of ‘outside world [as] one single owner’ (Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478 per Lord Browne-Wilkinson). That said, an equitable joint tenant can sever their interest and take an equal share as tenant in common. If there are more than two joint tenants, the others can remain joint tenants of the balance.

Joint tenancies have two characteristics in particular that distinguish them from tenancies in common. First, joint tenancies provide a right of survivorship. Second, joint tenancies always require the presence of the so-called four unities.

Right of survivorship

This right, also known as ius accrescendi, provides that upon the death of any of the joint tenants, the entire co-owned estate is said to ‘survive to’ the living joint tenant(s). The rights of the joint tenant upon death are therefore entirely extinguished upon death. The deceased cannot have provided for their rights to be passed on to nominated beneficiaries in their will. This is because, by definition, they have no share in the estate to pass on, because shares do not exist in a joint tenancy.

The law is to a degree archaic in this area when it comes to multiple deaths of joint tenants: if two or more of the joint tenants die and the order of death cannot be established on the balance of probabilities, the deaths are presumed, for purposes affecting title to property and subject to any order of the court, to have occurred in order of seniority (the so-called “commorientes” rule), and the youngest said to have ‘survived’ longest (Law of Property Act 1925, s.184). On the other hand, one might argue that the right of survivorship continues to reflect social norms, because with the death of one joint tenant in a family, the surviving joint tenants automatically continue to hold the whole estate. No transfer by the deceased is needed. No evidence is required to show the deceased joint tenant intended and acted to dispose of their title. Where a survivor unlawfully killed the deceased, the forfeiture rule can prevent the survivor benefiting from the death. On a claim for family provision the court may also treat the deceased’s severable share as part of the net estate (Inheritance (Provision for Family and Dependants) Act 1975, s.9).

Where the beneficial joint tenancy subsists at death, the surviving joint tenant(s) takes the entire beneficial interest irrespective of their (lack of contributions) towards the initial purchase of the property. Survivorship is therefore often a useful measure for ensuring that a family home stays within the family. Since 1925, co-ownership of any legal estate in land has necessarily been rendered as a joint tenancy. For the legal estate, it is not ‘permissible’ to sever a joint tenancy into a tenancy in common (Law of Property Act 1925, s.36(2)).

The legal title denotes the trustees who deal with the land and have administrative and fiduciary responsibilities, whereas the equitable title denotes the person who may benefit from the land. It is therefore relatively straightforward to create new joint tenancies of a legal estate, both because the distribution of benefits flowing from the land does not need to change with an increasing number of those with legal title, as these can be trustees, and also it means that where a joint tenant (with only legal title) dies, the surviving joint tenants with legal title can resume the duties of the deceased joint tenant without interruption. Trustees, who may also be beneficiaries, can be appointed (Trustee Act 1925, ss. 36, 40, 41(1); TOLATA 1996, s.19(2)).

Changes in legal joint tenancy

Joint tenants may opt to transfer the legal estate in land to themselves, or to transfer it to others, and hold the land as legal joint tenants (Law of Property Act 1925, s.72). This can be a useful mechanism where one of the joint tenants, acting in a capacity as trustee, intends to retire and/or if someone else wishes to become a trustee.

The Four Unities

A joint tenancy necessarily requires the presence of the so-called “four unities” in order to exist (AG Securities v Vaughan [1990]1 A.C. 417 per Fox LJ). Likewise, the four unities are characteristic of joint ownership, although in equity even co-owners whose interests have all four unities may hold as tenants in common, for example by express declaration (Corin v Patton (1990) 169 CLR 540 (HC of Australia) per Deane J). The four unities are unities of possession, interest, title and time.

Possession

The unity of possession pertains to the right of each joint tenant to possession of the land; the right of each tenant to the land applies to each and every part of the land. Therefore, no joint tenant may take possession of any portion of the land, such as by sectioning off that portion of land, to the exclusion of the other joint tenants (Meyer v Riddick (1990) 60 P & CR 50, CA). There cannot therefore be a trespass by any joint tenant against another, except where one joint tenant has wrongfully ousted another. According to the common law, joint tenants have no remedy of possession against other joint tenants, no matter how irritating, intolerable, or unpleasant the other joint tenant is (Wiseman v Simpson [1988] 1 WLR 35, CA). An occupation order can, however, exclude a joint tenant from the family home. Domestic abuse is one example. The present power for an entitled applicant is in section 33 of the Family Law Act 1996, subject to its statutory tests. For the earlier legislation see (Davis v Johnson [1979] AC 264, HL).

Interest

This form of unity derives from the idea that each joint tenant is ‘wholly entitled to the whole.’ The interest of each and every joint tenant is exactly the same in terms of extent, nature, and duration. No joint tenancy therefore can exist between a freeholder and leaseholder, because the nature (and durations) of their interests differ. The same can be said for owners in possession and owners in remainder, and for owners of a fee simple interest and those who own merely a life interest.

Title

The unity of title holds that each of the joint tenants derives their title to the land from the same act or document, such as an act of adverse possession, or a document such as a grant. For a co-owned legal estate, this type of unity also means that when a purchaser is looking to purchase the title to a portion of co-owned land, the purchaser need only purchase one title. Coupled with the fact that the number of trustees of a private trust of land is generally capped at four (Trustee Act 1925, s.34(2)), the purchaser will have no difficulty in investigating the title rights of the trustees, because a) there are relatively few trustees needed to sign the relevant documentation, and b) their interest is equal.

Time

At common law, this unity generally requires that the interests of all joint tenants must have been vested in them at the same time.

Key Points:

• The four unities are essential to establishing that co-owners have taken land as joint tenants.
• Fox LJ was responsible for elucidating and summarising the four unities.
• Separate agreements made on different dates did not give the four occupants a joint tenancy.

Family breakdowns and joint tenancies

Joint tenancies have given rise to issues where the joint tenants are a marital couple, or are in a civil partnership, and their relationship irretrievably breaks down.

Ending of periodic lease

At common law, unless the agreement provides otherwise, a single joint tenant may bring a periodic tenancy to an end for everyone by serving a valid notice to quit, without the consent of the others (Hammersmith and Fulham v Monk [1992]). For an English private assured periodic tenancy under the Renters’ Rights Act 2025 reforms, a tenant normally gives at least two months’ written notice, expiring on the first or last day of a tenancy period. One joint tenant can give notice. A shorter notice period or withdrawal of notice requires the written agreement of the landlord and all the joint tenants (Protection from Eviction Act 1977, ss.5, 5A). In Wales, under a secure or periodic standard occupation contract, one joint contract-holder can instead withdraw by notice and the contract continues for the others (Renting Homes (Wales) Act 2016, ss.52, 111, 130).

The problem, as noted in Qazi v Harrow LBC [2003] UKHL 43, is that the service of a notice to quit by one tenant of a periodic lease effectively brought the lease to an end without any consideration of the effect the loss of property had on the other joint tenant(s). The matter was considered in Manchester City Council v Pinnock [2010] UKSC 45. The Supreme Court, in this case, determined that if a public authority seeks possession of a person’s home, an occupier who raises a seriously arguable case may have the proportionality of eviction assessed under Article 8 of the European Convention on Human Rights. That does not invalidate the joint tenant’s notice (Sims v Dacorum Borough Council [2014] UKSC 63).

Social norms

The terms of the equitable joint tenancy upon breakdown may not necessarily reflect social norms of justice of who is entitled to what share, particularly where the breakdown is followed by the parties no longer cohabiting (Stack v Dowden [2007] UKHL 17; Jones v Kernott [2010] EWCA Civ 578, reversed by [2011] UKSC 53). For a family home bought in joint names without an express declaration of shares, the starting point is joint beneficial ownership. Separation alone does not displace it. In both these cases the court found a common intention, shown by the parties’ whole course of dealing, that their beneficial shares should be unequal.

In each case there were differing bases on which the court determined the joint tenancy was actually a tenancy in common. In Stack v Dowden, the court found the following factors to be relevant: a meticulous separation of the finances of each party, an unequal contribution between them towards the purchase price, and unequal financial contributions to the household after the purchase. In Jones v Kernott, the parties accepted that a joint tenancy had existed initially; the issue was whether their shared intentions had changed and, if so, what shares they now held. Among the relevant factors were the following: a long period of separation during which Mr Kernott made no further contributions towards the house, and the parties’ joint decision to cash an insurance policy which enabled Mr Kernott to purchase a house. The Supreme Court restored the division of 90% to Ms Jones and 10% to Mr Kernott. Where a common intention to share differently is established but the proportions cannot be inferred, the court may attribute shares it considers fair in light of the whole course of dealing.

A separate statutory rule applies when one spouse makes a substantial contribution in money or money’s worth to improving property in which either or both spouses have a beneficial interest. Subject to any contrary agreement, that spouse acquires a share or an enlarged share of the extent agreed or, in default of agreement, such extent as the court considers just (Matrimonial Proceedings and Property Act 1970, s.37). Section 65 of the Civil Partnership Act 2004 makes corresponding provision for civil partners. Neither section severs the legal joint tenancy. On divorce or dissolution, the court also has separate powers to adjust property interests (Matrimonial Causes Act 1973, s.24, and Civil Partnership Act 2004, Schedule 5).

TENANCIES IN COMMON

Unlike with joint tenancies, in tenancies in common the co-ownership arrangements are such that each of the co-owners holds a distinct share, or proportions of entitlement. Tenancies in common take effect only in equity. The Law of Property Act 1925 s.1(6) prevents a legal estate from subsisting in an undivided share; the word undivided is said to mean that the co-owned land has not been divided physically. There are two defining characteristics to tenancies in common, both of which set tenancies in common apart from joint tenancies:

1. There is no right of survivorship between tenants in common, and
2. The only unity required between the tenants in common is the unity of possession.

No right of survivorship

There is, unlike joint tenancies, no right of survivorship between tenants in common. The size of each tenant in common’s share is defined, finite and fixed; it is unaffected by the death of any tenant in common. Upon the death of any tenant in common, their share forms part of their estate and is distributed under their will or the intestacy rules, subject to administration of the estate.

Only unity of possession is required

Again, unlike with joint tenancies, tenancies in common do not require that all of the four unities be fulfilled. Instead, there is only one requirement: that each of the tenants in common has a right to possession of the land. If there was no unity of possession, meaning an equal shared right to possess the land, there would not be co-ownership. Without co-ownership, the arrangement would amount to separate ownership of physically distinct areas of land with boundaries between them.

Occupation and enjoyment

As with joint tenancies, given the unified right of possession between tenancies in common, no tenant in common is permitted to physically demarcate or erect boundaries on any part of the co-owned land for their own use at the exclusion of all other co-owners merely by virtue of their share. The tenants in common each have the right to exercise other acts attributable to owners of land, so long as he does not interfere with the equivalent rights of the other co-owners. This applies, regardless of the size of the share of each tenant in common, meaning that a tenant in common with a much greater share of the property cannot act in ways that exclude the right of possession of any other tenant in common with a smaller share.

These views have backing in the case law: each and every tenant in common has a right to the ‘use and enjoyment of it [the land] in a proper manner’ (Bull v Bull [1955] 1 QB 234, CA per Denning LJ). Under TOLATA 1996, s.12 an interest in possession carries a right to occupy if the trust purposes include making the land available for that beneficiary’s occupation, or the trustees hold it so as to be available for that purpose. The land must be available and suitable. Except where a tenant in common acts to physically oust another tenant in common, or acts to unlawfully interfere with mutual rights of enjoyment, the notion of trespass between tenants in common has no meaning at common law (Jacobs v Seward (1872) LR 5 HL 464, HL). That being said, courts have the means to regulate the occupation rights between the tenants in common (TOLATA 1996, s.14(2); Family Law Act 1996, s.33(3) for an entitled applicant and s.36(5) for a qualifying cohabitant or former cohabitant without an existing entitlement).

What may also be noted is that there is no inherent right of trustees, i.e. those that hold the legal interest in the land, to compel one beneficiary (i.e. a tenant in common with an equitable interest) to sell their share to another beneficiary (Rahnema v Rahbari [2008] 2 P. & C.R. DG5; Bagum v Hafiz and another [2016] Ch. 421 per Briggs LJ). A tenant in common may transfer their own beneficial share voluntarily. Beneficiaries who are all adults with capacity and together absolutely entitled may jointly direct a transfer of the trust property (Saunders v Vautier (1841) 4 Beav. 115). Otherwise, it falls to the court under sections 14-15 of TOLATA 1996 to deal with the dispute over the land. The court may direct the trustees to sell the property to a beneficiary at a valuation, but cannot compel one beneficiary to sell their share to another.

Liability of occupation rent

Between the tenants in common, it is usually the case that no one tenant in common can require the other tenant(s) in common to pay rent, even where one of the tenants in common effectively enjoys sole occupation of the land. In this case of sole occupancy, what occurs is not an abrogation of the right to possession on the part of the tenant in common who is not in occupation. Sole occupation does not of itself give rise to a relationship of landlord and tenant (Henderson v Eason (1851) 17 QB 701). This is relevant to the notion of trustees of land having the power to exclude some (but not all) of the beneficial co-owners from occupation where two or more are entitled to occupy under section 12. Exclusion or restriction must be reasonable (TOLATA 1996, s.13(1)). Where a tenant in common is so excluded, the trustee can require the payment of ‘compensation’ to any beneficiary whose enjoyment of the land has been precluded or restricted (TOLATA 1996, s.13(6)(a)). An occupation rent may also be allowed on an account where, for example, one co-owner has effectively excluded another, or other circumstances make it just (Ali v Khatib [2022] EWCA Civ 481).

Where rent is received from a letting of co-owned land, paid by a stranger occupying the land that has been let out, the net rental income is divisible between the tenants in common in exact proportion to the value of their respective share (Job v Potton (1875) LR 20 Eq 84).

Liability for repairs and improvements

When one tenant in common offers to pay for or make repairs or improvements to the co-owned land at their own expense, they generally have no right of immediate recovery of his costs from the tenant(s) in common. (This principle applies also for joint tenants.) That being said, the tenant in common may seek an allowance when the co-owners account on sale or partition (Leigh v Dickeson (1884) 15 QBD 60, CA). For improvements, the allowance ordinarily reflects the other owners’ respective shares of the lesser of the expenditure and the increase in value attributable to the work (Re Pavlou (A Bankrupt) [1993] 1 WLR 1046, ChD per Millett J). Alternatively, the trustees may make payment of outgoings or ‘expenses in respect of the land’ a reasonable condition of a beneficiary’s occupation (TOLATA 1996 s.13(3), (5)).

Equity’s Preference for Tenancy in Common

The common law has tended to favour joint tenancies for purposes of certainty and the value of the concept of survivorship, whereas equity has tended to favour tenancies in common. Equity views tenancies in common as providing fairness in the property relations of co-owners (Kinch v Bullard [1999] 1 WLR 423, ChD per Neuberger J). The starting point for a family home in joint names, however, is joint beneficial ownership, as in Jones v Kernott and Stack v Dowden. Each tenant in common is said to hold a beneficial interest that is fixed and not vulnerable to ‘the gamble of the tontine’ (Corin v Patton (1990) per Deane J). In tenancies in common, every share is a separate portion of wealth, distinguishable from the other shares, and can be used by the tenant in common for commercial purposes or may be passed down in the family.

As mentioned the common law favours joint tenancies, and this has been given statutory backing: co-ownership must take the form of a joint tenancy where it pertains to a legal estate in the land (Law of Property Act 1925, ss. 1(6) and 36(2)). Yet equitable estates can take the form of either a joint tenancy or a tenancy in common. The question of whether the equitable estate is one or the other will depend on whether the tenants have retained the right of survivorship or have instead sought to delineate their interests as distinct and apportioned shares.

There is an advantage, regarding the equitable estate, for favouring tenancies in common. Survivorship means that in the event any tenant dies prematurely, their interest passes wholly to the other joint tenants, and thus the deceased tenant has no means of diverting the interest to the persons they would have designated in their will. Under a tenancy in common, whether created so at the outset or following severance, the co-owner can dispose of their beneficial share during life or by will, subject to the trust and any applicable formalities.

What happens then where a tenant is simultaneously a joint tenant of the legal estate and a tenant in common of the equitable estate? This simply amounts to a full separation of those measures which attach to legal and equitable estates respectively. In other words, where a person is a joint tenant in the legal estate, the legal title survives to the remaining joint tenants, who therefore continue to deal with the land (for example, with service charges due to the freeholder under a lease). This does not discharge liabilities already incurred, and where they are a tenant in common, their estate can pass on the rights of beneficial enjoyment of their share in the land to whomever they designate.

Generally, as equity will follow the law, equity’s prior assumption is that where a person is a joint tenant of the legal estate, they are also joint tenant of the equitable estate (Pettitt v Pettitt [1970] AC 777, HL per Lord Upjohn; Cowcher v Cowcher [1972] 1 WLR 425, Fam Div per Bagnall J). An express declaration of beneficial shares is normally conclusive unless set aside, rectified or subsequently varied, or affected by proprietary estoppel (Pankhania v Chandegra [2012] EWCA Civ 1438). In its absence, the presumption can be displaced by indications from the words and conduct of the parties that they intend to take the equitable estate as tenants in common. There are a variety of circumstances which act to override the presumption of equity following the law and declaring a joint tenancy of the equitable estate. Thus, in the following cases, equity may recognise a tenancy in common over the equitable estate rather than a joint tenancy, and the list is not exhaustive (Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549, PC on appeal from Singapore per Lord Brightman):

1. Express or implied words of severance - This instance will usually arise in a document or transfer or conveyance in which it is expressly or impliedly clear that the parties intend to take distinct and separate shares in the land;
2. Absence of the “four unities” - As mentioned, the presence of all four unities is required for a joint tenancy, so an absence of any of the unities (save for the unity of possession) will necessarily mean the tenancy cannot be a joint tenancy;
3. Contributions towards the purchase price in unequal proportions - Unequal contributions can support a purchase-money resulting trust in proportionate shares, particularly on an investment purchase. The presumption is rebuttable. Unequal contributions alone do not determine shares in a family home bought in joint names;
4. Commercial partners - Given that joint tenancies have the right of survivorship as an essential characteristic, commercial parties would be presumed not to intend to divest the whole of their share in favour of the other commercial party, and instead would have opted to retain distinct shares (Lake v Craddock (1732) 3 P Wms 158);
5. Business tenants - Separate business purposes, coupled with an allocation of space and rent between business tenants, can support the inference of a tenancy in common in equity (Malayan Credit Ltd v Jack Chia-MPH Ltd [1986]);
6. Joint mortgagees - Mortgagees are of course the lenders in a mortgage relationship, and so where lenders advance their separate money on a joint security, equity generally presumes that they hold their interests in the debt and security in common, so that each is taken to have intended to ‘lend his own and take back his own’ (Morley v Bird (1798) 3 Ves 628).

Key Points:

• The trustees granted the charge in breach of trust. That did not prevent overreaching in favour of the society.
• The interest of each tenant in common, being merely an equitable interest, could be overreached by a party entitled to the charge over the property.
• The tenants in common had a personal claim against the joint tenants for the breach of trust in mortgaging the property.

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