Why Joint Tenancy Might Catch You Off Guard

11 December, 2025 5 minutes reading time

When you buy property with a partner, many couples opt for joint tenancy because it appears simple. While it is a popular choice for married couples, it also involves significant, often hidden, risks that may not be immediately apparent. These risks can lead to complications if a relationship changes or if one owner dies unexpectedly.

Building on what we discussed in our previous blog, let’s take a closer look at the main disadvantages of joint tenancy. We will also provide two examples to illustrate why choosing the correct ownership structure for your specific circumstances from the outset is so crucial. 

Potential Pitfalls

The main feature of joint tenancy is the right of survivorship, which is both its advantage and its biggest flaw. The right of survivorship means that when one joint tenant dies, their share automatically goes to the remaining owner(s), regardless of what’s written in their Will.

Loss of Control

However, it’s essential to be aware of the loss of control this entails. If you pass away, you can’t choose to leave your share to children from a previous marriage, other family members, or a trust—your Will isn’t able to override the property title.

Breaking a Joint Tenancy

Many people believe that a joint tenancy cannot be broken, but in fact, it can be terminated without the agreement or even the knowledge of your co-owners. This can occur in several ways:

– By one party filing a Notice of Severance (Form SEV) with the Land Registry.

– Through a formal sale or transaction.

– If one party takes out debt secured against the property, such as a charge or charging order. If that person passes away, the joint tenancy is immediately severed and converted into tenants in common. This is a surprising and risky aspect to be aware of, because it effectively removes the fundamental survivorship rule. 

Scenario One: The Power of Unilateral Severance

The financial trap described in this case focuses on an important point: joint tenancy is not automatically granted. It can actually be terminated unilaterally—without requiring the agreement of both parties. This case really demonstrates how powerful a simple notice can be.  

Kinch v Bullard [1998] 4 All ER 650

Background

In the case of Kinch v Bullard (1998), a divorcing couple, Mr and Mrs Bullard (initially Johnsons), were beneficial joint tenants of their home. As they went through a divorce, the wife—who was terminally ill—wanted to sever the joint tenancy.

Her solicitor sent a notice of severance by first-class post to their home. Sadly, before her husband could receive or read it, he suffered a heart attack. Recognising that she could now inherit the entire property through survivorship if the tenancy wasn’t severed, she retrieved the letter from the mailbox and destroyed it.

Legal Challenge

After both tragically died shortly afterwards, their executors found themselves in a dispute over who owned the property. The key question was whether the notice of severance had been effectively served under the Law of Property Act 1925, or if her destroying the notice could reverse the severance.

Consequences

The court concluded that the notice was served when it was placed in the husband’s mailbox. The fact that Mrs Bullard destroyed it did not alter this. Essentially, Mrs Bullard left it to the post office to serve the notice on her behalf, and they did so correctly. Consequently, the right of survivorship was broken, and Mr Bullard’s share passed through his Will rather than to Mrs Bullard via survivorship.

Scenario Two: Intestacy and a Minor Child

This example highlights the serious consequences that can happen when a joint tenancy is ended without a Will in place.

Background

A couple, Sarah and Ben, who shared their home as joint tenants. They had a child, Leo, and never wrote a Will. Ben owed significant personal debts, and a creditor successfully registered a charging order against the property, which instantly severed the joint tenancy.

When Ben unexpectedly died, Sarah was shocked to find that she didn’t automatically inherit the entire house. Instead, because Ben didn’t leave a Will, his 50% share went to his ten year old son, Leo, under the rules of intestacy.

Consequences

Sarah now co-owns the house with her ten-year-old son. She cannot sell, transfer, or remortgage the property because any transaction involving Leo’s share requires court approval.

Sarah is stuck with an expensive mortgage she cannot change. Additionally, managing Leo’s share involves costly court applications and the appointment of a court-approved solicitor to act on Leo’s behalf.

This tragic situation—where a creditor’s charge secretly removed the Right of Survivorship and forced the family into costly court proceedings—is a stark reminder of the importance of Wills and the need for a protective legal structure for beneficial ownership. 

Our Advice

If you’re a joint tenant, consider whether you want full control over your share. If you have children from a previous relationship or want to put your share into a trust, being a tenant in common might be a better option.

Think about whether debt could be a concern. If so, ending the joint tenancy can help protect your share from financial issues.

Remember your Will. It only applies to your share if you’re a tenant in common; if not, it won’t control the property.

If Joint Tenancy isn’t suitable for you, you can switch to tenants in common by serving a notice of severance. Seeking specialist legal advice is essential to ensure the documents are correctly drafted. If you want more information or to speak with our team, please don’t hesitate to contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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