Tenants in Common: What Happens When One Owner Dies?

Tenants in common is one of the two ways that two or more people can own property together in England and Wales — the other being joint tenancy. The distinction matters enormously on death, because the legal consequences are completely different. This guide explains what happens to a tenants-in-common share when one owner dies, and what rights and responsibilities each party has.

Joint Tenancy Versus Tenants in Common: The Key Difference

In a joint tenancy, the co-owners hold the property together as a single unit. When one joint tenant dies, their interest passes automatically to the surviving joint tenant or tenants by the right of survivorship. This happens regardless of what the will says — the will cannot override the survivorship rule for jointly held property.

In a tenants in common arrangement, each owner holds a distinct, identified share of the property. That share can be left by will to whomever the owner chooses. It is not subject to survivorship. Shares need not be equal — for example, two buyers who contribute different deposit amounts may hold 60% and 40% respectively.

To find out how a property is held, check the title register at Land Registry. If there is a restriction on the title reading "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," this is the Form A restriction and confirms the property is held as tenants in common.

Where the Deceased's Share Goes

When a tenant in common dies, their share forms part of their estate and is distributed in accordance with their will. If they had no valid will, the intestacy rules under the Administration of Estates Act 1925 determine who inherits.

Common scenarios include:

• A married couple who deliberately severed their joint tenancy to hold as tenants in common — typically to protect their respective shares for children from a previous relationship. On death, the deceased's share passes to whoever is named in the will
• Two siblings who inherited a property together and hold it as tenants in common. On one sibling's death, their share may pass to their own children, not to the surviving sibling
• Business partners or investors who purchased together, each owning a specific percentage. On death, the investor's share passes into their estate

This can create complex multi-party ownership situations, where the surviving co-owner now shares the property with a relative or beneficiary they may have little relationship with.

Rights of the Surviving Co-Owner and Beneficiary

The surviving co-owner and the person who inherits the deceased's share both have legal rights over the property. Neither can simply take unilateral action:

• The surviving co-owner cannot be forced to sell immediately — they remain in legal occupation with full rights to their own share
• The beneficiary who inherits the deceased's share is now a beneficial owner of that share, even if they do not live in the property. They are entitled to a share of any rental income and a share of the sale proceeds if and when the property is sold
• If the surviving co-owner is living in the property rent-free, the beneficiary may argue that a rental value is owed to them — though courts do not automatically award occupation rent where a co-owner is in occupation
• Neither party can sell the whole property alone — both beneficial owners must consent to a sale

TOLATA: What Happens When Co-Owners Cannot Agree

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) governs disputes between co-owners of property held on trust. When a tenant in common dies and the beneficiary and surviving co-owner cannot agree on whether to sell the property, occupy it, or divide it in some other way, either party can apply to the court under TOLATA.

The court can make various orders, including:

• An order for sale of the whole property
• An order that one party buys out the other's share at a price determined by the court
• An order for occupation by one party, with or without compensation to the other

In deciding what order to make, the court considers factors including the purpose for which the trust was created, the welfare of any minor children in the property, the interests of secured creditors, and the circumstances of each party. TOLATA proceedings can be lengthy and costly — they should be a last resort after genuine attempts at negotiation.

Estate Planning Uses: Severing a Joint Tenancy

One of the most common reasons couples deliberately hold property as tenants in common — rather than as joint tenants — is to protect a share for children, particularly children from a previous relationship. This is done by severing the joint tenancy.

Severing a joint tenancy requires serving a written notice of severance on the other co-owner. Once served, each party holds an equal share as tenants in common (irrespective of original contributions, unless a Declaration of Trust records a different split). The Form A restriction is then registered at Land Registry to note the change.

A common arrangement is for a couple to hold as tenants in common, with the will of each leaving their share to their children in a life interest trust — meaning the surviving spouse can continue to live in the property for life, but on death the share passes to the children rather than reverting entirely to the surviving spouse's estate. This is known as a "life interest will" or "property protection trust" arrangement and requires careful drafting by a specialist solicitor.

Updating the Land Registry After Death

When a tenant in common dies, the deceased's name is removed from the Land Registry title using Form DJP (Deceased Joint Proprietor). This does not transfer the beneficial interest — it simply removes the deceased from the register of legal owners.

To complete Form DJP, you will need:

• The title number of the property (available from the Land Registry website for a small fee)
• The full name and date of death of the deceased owner
• The official copy of the death certificate

There is no Land Registry fee for this form if it is filed separately from a transfer. The surviving co-owner can file it themselves without a solicitor, though a solicitor is usually instructed as part of the wider estate administration.

If the beneficial interest in the deceased's share is subsequently transferred to a beneficiary — for example, where the beneficiary wants their name added to the title — this requires a separate transfer document and the relevant Land Registry fee.