Severance of Tenancy



Severance of a Joint Tenancy can happen automatically in certain circumstances. For instance, if one of the owners is declared bankrupt, or commits murder of another owner. The normal main reasons for severing a tenancy are  a break down in the relationship of the parties, such as a divorce, to prevent children from a former relationship being disinherited or to provide possible protection against care home costs.

If you or your spouse/partner own property in joint names, it will usually be held as Joint Tenants, in which case the right of survivorship will apply. The type of ownership affects what you can do with the property if your relationship with a joint owner breaks down, or if one owner dies.

If you are a Joint Tenant, this means that on the death of one tenant, his or her share automatically passes to the surviving tenant.

If you do not wish this to happen, then the Joint Tenancy must be severed to create a Tenancy in Common.  This is a fairly simple process and, once done, the right of survivorship no longer applies, such that on the death of one tenant, his or her share does not automatically pass to the surviving tenant, but according to his or her valid Will or the rules of intestacy in the event that there is no valid Wil

Changing from Joint Tenants to Tenants in Common

This is known as ‘Severing the Joint Tenancy’. It requires service of a written notice of change – the ‘severance’. It can be done without the other owner’s cooperation or agreement. It is recorded at the Land Registry, and the other owner will know it has been done but only ‘after the event’ so to speak.

It can also be done by agreement of the owners, and a slightly different procedure is followed, but the result is the same.


Avoiding Sideways/Accidental Disinheritance

This is a situation when on the death of a joint partner, the surviving spouse remarries.  The survivor owns the entire property and unless the tenancy is severed prior to first death, there is a risk that the children of the first to die could be disinherited. This would happen when the assets of the survivor are merged with their new partner and the new partner outlives them.

If You Are Served A Notice Of Severance

Whatever happens, if you are served with a Notice of Severance, don’t panic and don't think  it means that you are no longer the owner of the property, or that you have to meet all of the mortgage payments by yourself. It simply reflects a change in the way the property passes in the event of the death of one of the owners.

To that end you need to review your Will or get one written in order to protect your share of the house so your spouse can live in it for her lifetime but that it should then pass to those you wish to inherit it.

Having the house owned in this way will not affect how a court will determine a divorce settlement.

But don’t delay – if you are thinking of severing the Joint Tenancy of your home but have no Will in place it is essential that you have an up-to-date and valid Will put together as a matter of urgency.