Before dealing with how to sever a joint tenancy, it is important to understand what is a joint tenancy and how it arises.
When two or more parties co – own property there are two methods of ownership and registration.
Joint Tenancy; this is the usual type of ownership that would traditionally arise between married couples. In this situation the doctrine of survivorship applies therefore if one joint owner dies, the property automatically vests in the survivor (the other joint tenant). This takes the asset out of the estate for probate purposes as the property automatically vests in the survivor and cannot be left or bequeathed to any beneficiaries within a will as it automatically vests in the surviving joint registered owner.
The other method of registration is called Tenants in Common whereby each party owns separate interests in the property (e.g., one half, one third, one quarter etc). The difference here is that the doctrine of survivorship does not apply. On the death of one tenant, their interest in the property passes into their estate and to the beneficiary entitled within their will or on intestacy (where there is no will) under the Succession Act 1965.
Converting ownership from a joint tenancy to a tenancy in common requires the consent of all the joint tenants and it is done by way of formal deed executed by all of the joint registered owners. It can often create difficulties particularly if there is a dispute or parties to the joint tenancy ownership that either lack capacity or under 18 years of age. Thankfully, Section 31 of the Land and Conveyancing Law Reform Act 2009 allows for an application to be made for an order dispensing with the need for consent where it is being “unreasonably withheld”.
Whilst the concept of joint tenancies are favoured by some families, as they like to keep the property within the same family unit, it is not always a workable solution and therefore the tenant in common registration is a more suitable option.
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This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by McElhinney & Associates for any action taken in reliance on the information contained herein. Any and all information is subject to change.
About the Author
Jolene McElhinney, BBLS, Principal Solicitor
Jolene McElhinney is the founding principal of McElhinney & Associates, renowned for her expertise in employment law and personal injury claims across the North West of Ireland. With a distinguished academic background and over a decade of experience, Jolene is dedicated to providing personalised, expert support to her clients, ensuring they navigate the complexities of the legal landscape with confidence and clarity.
