A couple involved in cohabitation breakdown should ensure that they fully understand the difference between owning a property together as Joint Tenants and Tenants in Common. If they own a property together as Joint Tenants, then they both own the whole and either can apply to the court for an order for sale and for the proceeds to be divided, usually equally. There are no distinct shares of ownership. In addition, on the death of one of the couple, the survivor becomes the sole owner.

Owning a property as Tenants in Common means that you each own a distinct share in the property. If the shares are not specifically set out in the Transfer Deed or a Trust Deed, the assumption is that each owner owns 50% of the property. If the couple purchased the property as Tenants in Common, only a declaration of trust, setting out their respective shares in the property, is decisive. In addition, on the death of one of the couple, the survivor does not become the sole owner, as the deceased person’s share passes in accordance with his or her will or under the intestacy rules. The intestacy rules do not make provision for a cohabiting couple so it is essential that they make wills. In some limited circumstances, it is possible for the survivor to make a claim against the deceased’s estate.

It is strongly recommended that if you wish to own the property in unequal shares that you advise your solicitor of those shares so that this can either be recorded in the Transfer Deed or the terms of the ownership of the property can be set out in a separate document called a Trust Deed.

If only one of the cohabiting couple is the sole legal owner of the property, the presumption is that he or she also owns all the beneficial interest in the property. In this situation, the other person has to establish a claim in equity (resulting, constructive trust or proprietary estoppel).