Severing a Joint Tenancy

Severing a joint tenancy is the process by which you convert a joint tenancy into a tenancy in common. It is a relatively straightforward process and we have prepared the draft documents you need, so that you can do it yourself.

How do I know if I am a joint tenant?
You will need to check on your Title Document. If you have a mortgage then this will be held by your mortgage company. The Proprietorship Register will show the names of the people that own the property and, if you are tenants in common will also have the wording "No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court". If there is no such wording in the Title Document then you are almost certainly joint tenants.

So what's the difference and why do I need to sever anything?

If you own your property as joint tenants then each of you jointly own the entire property (technically it is held by you in trust for yourselves!). The consequence of this is that upon the death of one party their interest in the property passes automatically to the survivor. It is therefore usual for married couples to buy a property as joint tenants. However if they then split up it is unlikely that they would wish their other half to automatically take their "share" in the property if they were to die. They should therefore usually sever the joint tenancy and become tenants in common, until such time as the property is sold or transferred fully from one party to the other.

If you hold a property as tenants in common, this means that each owner has a distinct share in the property. If there are two owners this will automatically be half each. Alternatively you can decide between yourselves what share of the property belongs to each owner. The important point is that each of the tenants in common always owns their share of the property, and they are only entitled to that percentage of the sale proceeds, if sold during their lifetime. If they die then their share of the property forms part of their estate. It does not automatically pass to the other owner.

Severing a joint tenancy?

In order to sever a joint tenancy and create a tenancy in common a notice of severance needs to be served by one owner on the other owner of the property. We are currently preparing a draft notice of severance which you will be able to access and download. This will need to be completed by you. Please note that this does not apply to property held in Scotland.

The completed notice then needs to be severed on the other party, together with a without prejudice letter (also part of our pack). Once the notice has been served the joint tenancy has been severed and there is nothing that the other owner can do to prevent this.

Once the tenancy has been severed you should notify the Land Registry (assuming the Property is registered) in writing of the severance using the new form SEV (which replaced the old RX1 form as from November 2008). We will also supply you with a copy of a completed sample SEV form. There is no Land Registry fee payable for this application.

Law on the Web will soon be able to provide you with a draft notice of severance and the draft letter you can use to send it, plus full instructions on how to complete them, and the drafted sample SEV form. You can then prepare your own notice of severance and send it with the necessary covering letter, and then advise the Land Registry once the joint tenancy has been severed.

The draft notice of severance is being updated at the moment, but come back soon for the new improved version.

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