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Severing a Joint Tenancy
Beneficial interests in a property when held by more than one person, must be held by them either as 'joint tenants', where each owns all the property, or as 'tenants in common', where each owns a specified part of the property. Most houses are bought and held as joint tenants, but this can be or become inappropriate, and it becomes necessary to sever, or to split, the joint tenancy, and to hold the house as tenants in common. The interests in the house are then held in separate, distinct, shares which can, for example be left by will, and may not be equal. Severance can happen automatically, but it is best to serve a clear notice. This note sets out to explain our form of notice.
Severance happens as soon as the notice is served, and is effective even if the other party does nothing. It is not something which needs the consent of the other tenant, but of course you cannot just choose what the proportions of ownership are. Our notices will not always set the shares in which the house will be held, saying that this remains to be decided. Notices often need to be served quickly, and may be followed by court proceedings. If a share is specified too early, this can cause further disagreement or difficulty. If you and the other party clearly agree as to what the shares should be, it makes sense to include this declaration now. Please let us know if this applies. In any event, recognise that there remains a necessity to declare those shares at some stage.
It helps to be able to prove service and, therefore, the recipient is asked to sign to acknowledge receipt, and to return a copy. Because of the importance of the notice, we advise them, to obtain independent legal advice.
Where land is registered it is better to protect the interests of both parties, by asking for a restriction to be placed on the title. This is in the form suggested at the bottom of the notice. If one party dies, and the other party seeks to sell the house, a purchaser must then make sure that arrangements are made to respect the interests of both parties. A restriction is best entered with the consent of both parties, and the form asks for this.
There is a charge for the registration of such a restriction, currently £40.00. Clients sometimes choose to keep the application unregistered, knowing that it can be registered if necessary. It is clearly better to register the restriction. Please note that we will not apply to register the restriction unless we receive the Land Registry fee from you.
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