PropertySeverance of Joint Tenancy

10th August 2021Manisha Chauhan2
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As a technical team, we come across queries on the subject of severances on a daily basis so we thought this article might help answer those common questions or misconceptions.

If you hold your property as joint tenants with another person, you may decide that you want to now change the ownership so it is held as tenants in common. This will then enable you to gift your share of the home to whomever you wish in your Will. It is important for us to add that where the property is held as joint tenants and there is a life interest trust included in the Will, the title would need to be severed in order for the share of the property to enter the trust.

Let’s first have a look at the difference between holding the home as joint tenants and tenants in common.

How is your property held?

Joint Tenancy

 If you hold your property as joint tenants with another person, this means that both owners own 100% of the property, not a divided share. You have equal rights to the whole property, and if the property is sold you will each be entitled to an equal share of the proceeds.

A joint tenancy creates rights of survivorship. The result is that when one owner dies the remaining owners will automatically own the whole property. This means that a joint tenant cannot gift their interest in the property to anyone by their Will.

Tenants in Common

If you hold your property as tenants in common, you will each have a divided share in the property. This is often an equal share, but it is also possible to hold the property in unequal shares. This is an attractive option for people purchasing a property together and contributing different amounts towards the deposit.

Under a tenancy in common, each owner can deal with their share in the property separately, allowing them to gift their share to their own beneficiaries by their Will. This also opens up more opportunities for planning to protect their share of the property by using trusts in their Will.

How can I check how my property is held?

Your estate planner will be able to download the title register from the land registry website and confirm how you hold your property.

Can a title be severed from joint tenants to tenants in common?

Yes, it can be.

To sever the title so the home is held as tenants in common, a notice of severance would need to be completed and signed by all the owners. We would advise 3 copies are signed – one kept with the estate planner, one copy remains with you and the other copy is stored with the Will.

A SEV form would also be completed and sent to the land registry who will then update the title register.

A common misconception is that the SEV form itself is evidence of the severance to tenants in common but this is not the case. The notice of severance is the document which evidences your intention to own the property as tenants in common.

Do I have to instruct a conveyancer to carry out the severance?

No. The severance can be carried out by your estate planner. If you would prefer to instruct a conveyancer however, you can do so.

Does the severance have to be mutually agreed between the home owners?

No. There may be a situation where a home is owned jointly by husband and wife. However, they are no longer on talking terms and wife wishes to sever the tenancy. This can be done and is otherwise known as a unilateral severance.

She would need to serve a written notice of the change (notice of severance) on her husband, complete the SEV form, prepare any supporting documents and send it all to HM Land Registry’s Citizen Centre.  The supporting documents would be a letter certifying that she has given the notice to her husband or left it at his last known home or business address (if he has one) in the UK.

She would also need to confirm how the notice was served. We advise to service a unilateral notice by recorded delivery so there is proof that it was served.

It doesn’t need to refer to the reasons for the unilateral severance.

Is there a fee to submit the SEV form?

There is no fee for submitting the SEV form.

Is it the same process if my home is unregistered?

If your home is not registered with the land registry, you can only  complete the notice of severance. The SEV form is only completed for properties that are registered with the land registry.

We would encourage you to register your home during your lifetime if your property is unregistered.

What happens if I die before the title register is changed?

If the notice of severance has already been signed, this evidences your intention to hold the property as tenants in common. It is the notice of severance and not the SEV form that indicates the intention to hold the property as tenants in common.

If, however, no notice of severance was signed before you pass away, the property would still be held as joint tenants and therefore the deceased’s share would automatically pass to the surviving owner.

What do I do if the title register is in my maiden name still? Should I change my name with the land registry first?

There is no need to wait for the name to be changed before the title is severed.

The notice of severance and SEV form can be completed in your married name. You can also send form AP1 to the land registry with regards to the change in name. This can be sent at the same time as the SEV form so it can all be processed by the land registry together. It is likely the land registry will need proof of the name change i.e. marriage certificate.

How long is the turnaround time for processing applications?

The notice of severance will be drafted by your will writer so it depends on their turnaround time to get this drafted for you and then for it to get signed. Remember, once it is signed, it shows your intention to hold the property as tenants in common. The SEV form is only for the land registry to update their records so it is reflected on the title register.

Unfortunately, we cannot comment on how long the turnaround time is for the land registry to update the title register but once this is done, they will send confirmation of the severance, along with a copy of the updated title register to either yourself, your will writer or the conveyancer.

 

You should discuss severance of tenancy as part of your estate planning with a professional. For the the best advice and support, speak to a member of The Society of Will Writers today. You can find a member by visiting our Find a Member page, or call the office on 01522 687888 and our team will be more than happy to help.

 

Photo by Viktor Forgacs on Unsplash

 

Manisha Chauhan

Manisha joined the Technical Advice Team in July 2019 having previously worked as an Employment Solicitor in Warwickshire before relocating to Lincolnshire. Manisha provides advice on technical queries daily and works alongside Siobhan Smith also providing ongoing support on Sure Will Writer.

2 comments

  • Peter Wallace

    14th August 2021 at 10:24 am

    Can unilateral severance take place if one joint tenant has lost mental capacity?
    If so can the notification be served by sending it recorded delivery to the nursing/care home when the incapacitated joint tenant resides?

    Reply

    • Manisha Chauhan

      17th August 2021 at 10:05 am

      Hi Peter,

      Yes unilateral severance can take place. So, for example, Mr could unilaterally sever the tenancy as there’s no requirement for the person being served the notice to understand or consent to it.
      The notification can be sent to the care home if this is where they live.

      Reply

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