Tenants in Common Agreement UK: Protect Your Share

At a glance

• Two ways to co-own property in England and Wales: joint tenancy (no separate shares, right of survivorship) or tenancy in common (distinct shares, no survivorship).
• Legal title is always held on trust: by up to four named owners as joint tenants, under section 34 of the Law of Property Act 1925 — whatever the beneficial split between the owners.
• Tenants in common shares pass by will or intestacy, never automatically to the co-owner. Check GOV.UK if there is no will, since unmarried partners have no automatic right to inherit.
• Severing a joint tenancy: usually done by a written notice of severance under section 36(2) of the Law of Property Act 1925, then registering a Form A restriction at HM Land Registry.
• Recording the shares: the Land Registry entry flags that the property is held in shares, but the actual percentages and terms belong in a separate declaration of trust or tenants in common agreement.
• Disputes: any trustee or beneficiary can apply to court under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 if co-owners cannot agree.
• Fees and figures change: always check current Land Registry fees, court fees and any statutory amounts on GOV.UK rather than relying on this guide's figures being current.

What this document is

A tenants in common agreement is a written document between co-owners of property that records how they hold their beneficial interest in that property. Under a tenancy in common, each owner has a distinct, identifiable share rather than a collective interest in the whole, and the underlying legal mechanism is a trust: the legal estate is held by the registered owners as trustees, while the beneficial shares belong to the people who actually contributed and agreed the split.

Those shares can be equal (50/50 between two people) or unequal (for example 70/30, or any split the parties agree) to reflect different cash contributions, mortgage payments, or later improvements. The agreement sits alongside the legal title at HM Land Registry and is usually backed up by a declaration of trust — in practice the two documents are often combined into one.

It typically covers the size of each share, how mortgage and outgoing payments are handled, what happens on sale, how a buyout works if one party wants to leave, and how disputes are resolved. It does not manage the property day to day.

Its job is to protect the money each person has put in and to make sure that intention survives life events like death, separation, or bankruptcy.

Joint tenancy vs tenancy in common: the key difference

Under a joint tenancy, all owners hold the whole property together, with no individual shares. The defining feature is the right of survivorship: when one joint tenant dies, their interest passes automatically to the surviving joint tenant(s), regardless of what their will says. This is the default HM Land Registry assumes for many co-purchases unless owners actively choose otherwise (GOV.UK: joint property ownership).

Under a tenancy in common, each owner holds a distinct share of the beneficial interest — equal or unequal — and there is no right of survivorship. A share held as tenants in common passes on death according to the owner's will, or under the intestacy rules if there is no will.

Both arrangements sit on top of the same legal structure: the property's legal title is always held by the registered owners as joint tenants on trust (a maximum of four names can appear on the register), and it is the beneficial interest underneath that differs. This split between legal title and beneficial interest is the reason a declaration of trust and a Land Registry restriction do different jobs, covered below.

The legal framework: property held on trust

Since the Law of Property Act 1925 came into force, land cannot be owned by more than four people as legal owners, and any land conveyed to co-owners in undivided shares takes effect instead as a conveyance to those owners (or the first four named) as joint tenants, holding the legal estate on trust for the people actually interested in it — section 34, Law of Property Act 1925. Since 1997, that trust is a "trust of land" under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), which sets out the trustees' powers and the framework for resolving disputes.

In plain terms: the names on the Land Registry title are the legal owners, acting as trustees. The tenants in common agreement or declaration of trust records who the beneficial owners actually are and in what shares — and it is that document, not the register entry, that fixes the percentages.

Recording the shares: the declaration of trust

HM Land Registry's own guidance is clear that the register shows that a property is held on trust (via the Form A restriction, below) but does not record how much each person owns. That detail belongs in a separate signed document — most commonly a declaration of trust, sometimes called a tenants in common agreement or a deed of trust.

A well-drafted declaration of trust typically sets out:

• the percentage share each person holds, and how it was calculated (deposit contributions, mortgage repayments, later capital improvements);
• how mortgage payments and outgoings are split while you own the property together;
• what happens if the property is sold — how the proceeds are divided and how costs are deducted;
• a mechanism for one owner buying out another; and
• what happens if the owners cannot agree, including a reference to the court process under TOLATA 1996, section 14.

Contemporaneous evidence of what was agreed and why carries real weight if the split is ever challenged later, which is why writing it down at the time — rather than relying on memory years afterwards — matters.

Registering it: the HM Land Registry Form A restriction

When you buy as tenants in common, your conveyancer applies to enter a Form A restriction on the title. Its wording (set by HM Land Registry) prevents a registered disposition by a sole proprietor — other than a trust corporation — from being registered unless it is authorised by a court order. In practice, this means at least two trustees (or a trust corporation) must be involved in any future sale or mortgage, which stops a lone surviving owner from dealing with the property without proper authority.

The restriction is entered using Form SEV where you are severing an existing joint tenancy, or as part of the transfer (TR1) if you buy as tenants in common from the outset. HM Land Registry's Practice Guide 24 covers the detail for conveyancers. Always check GOV.UK for the current application fee, if any, before submitting a standalone application.

Severing a joint tenancy: the section 36(2) notice

If you already own as joint tenants and want to change to tenants in common — for example, because your contributions have become unequal, or your circumstances have changed — you sever the joint tenancy. The most common route is a written notice of severance under section 36(2) of the Law of Property Act 1925.

A few points matter in practice:

• The notice does not need any particular form of words, but it must show a clear, immediate intention to end the joint tenancy.
• Serving the notice is a unilateral act — you do not need the other owner's agreement, although it is sensible to discuss the new shares together where the relationship allows it.
• Once served, the property is held on the terms that would have applied had severance already taken effect — in practice, as tenants in common in equal shares unless a declaration of trust records something different.
• After severance, you (or your conveyancer) apply to HM Land Registry to enter the Form A restriction confirming the change.

Worked example

Priya and Tom buy a flat as joint tenants when they first move in together. Five years later, Priya has paid substantially more towards the mortgage following an inheritance she put into the property. They agree it is fairer for Priya to hold 65% and Tom 35%. Their solicitor serves a written notice of severance under section 36(2) LPA 1925, applies to HM Land Registry using Form SEV to register a Form A restriction, and drafts a declaration of trust recording the 65/35 split and how a future sale will be handled. From that point, if either of them dies, their share passes under their will rather than automatically to the other.

Why this especially matters for unmarried couples

Unmarried couples have no automatic property rights in each other's assets under English law in the way that spouses and civil partners do on divorce or dissolution. If an unmarried couple buys as tenants in common and one partner dies without a will, that partner's share does not pass to the surviving partner automatically — it passes under the intestacy rules, which do not recognise unmarried partners at all (GOV.UK: who can inherit if there's no will). A related document, a cohabitation agreement, can sit alongside a declaration of trust to cover wider financial arrangements between unmarried partners beyond just the property.

The practical takeaway is the same for every unmarried co-owner: tenancy in common only delivers the protection people expect if it is paired with an up-to-date will. Without one, a partner of many years can end up with nothing from the property, however unfair that feels.

Unequal contributions and later changes

Tenancy in common is the natural structure whenever contributions are not 50/50 — a bigger deposit from one buyer, a parent gifting money towards one child's share, or one owner taking on a larger portion of the mortgage. The shares can be set at any proportion the owners agree and recorded in the declaration of trust.

It is also common for shares to need revisiting later — a further capital contribution towards renovations, or a change in who is paying the mortgage. Where this happens, update the declaration of trust (or draft a fresh one) rather than relying on an informal understanding; a document signed and dated at the time is far stronger evidence than a recollection years later if the point is ever disputed.

What happens to a share on death

A tenant in common's share does not pass automatically to the surviving co-owner. It forms part of the deceased's estate and passes:

• under the terms of their will, if they made one and it is valid (see GOV.UK: making a will); or
• under the intestacy rules if they did not, which follow a fixed order of priority among surviving relatives and do not recognise unmarried partners (see GOV.UK: who can inherit if there's no will).

This is one of the central reasons people choose tenancy in common over joint tenancy: it lets each owner control who ultimately inherits their share, rather than the property passing automatically to whoever happens to survive them.

Resolving disputes: TOLATA 1996, section 14

If co-owners cannot agree — for example, about selling the property, buying one another out, or what share each person actually holds — any trustee or any beneficiary with an interest in the property can apply to court under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. The court can make orders relating to the trustees' functions (including ordering a sale) and can declare the nature or extent of a person's beneficial interest, though it cannot use section 14 to appoint or remove trustees.

Section 15 of the same Act sets out the factors the court weighs, including the purpose for which the property was originally bought, the welfare of any minor who lives there, and the interests of any secured creditor. These applications go through the County Court or the High Court and can be lengthy and expensive — a strong incentive to record shares and intentions clearly at the outset rather than relying on the court to work them out later.

Bankruptcy and creditors

Because a tenant in common's share is distinct from their co-owner's, a trustee in bankruptcy generally only acquires the bankrupt owner's own share, not the other owner's share. However, the trustee in bankruptcy can still apply for an order for sale of the whole property under TOLATA 1996, section 14, and section 335A of the Insolvency Act 1986 governs how the court approaches that application. Once more than a year has passed since the bankrupt's estate first vested in the trustee, the court must assume the creditors' interests outweigh all other considerations unless the case is exceptional. A forced sale under this route can still affect a co-owner who is not themselves bankrupt, which is why early advice matters if this risk arises.

How to use this document

1. Decide how you want to hold the property. Before completion, talk through whether joint tenancy or tenancy in common fits your circumstances. If contributions are unequal, if you are unmarried, or if either of you has children from a previous relationship, tenants in common is often the more sensible choice because it lets each share pass under a will rather than automatically to the survivor.
2. Agree the share split and record the reasoning. Work out the percentage each person owns and why. This might reflect deposit contributions, an uneven mortgage split, or a planned future contribution. Writing down the reasoning matters because contemporaneous evidence carries real weight if the split is ever challenged later.
3. Instruct your conveyancer to reflect this on the TR1 and at HM Land Registry. Your conveyancer should record the tenancy in common on the transfer and register a Form A restriction on the title (Form SEV if you are severing an existing joint tenancy). This alerts any future buyer or lender that the beneficial interest is held in shares, and prevents a sole surviving owner from dealing with the property without proper authority.
4. Put the detailed terms into a declaration of trust. The Land Registry entry flags the structure but does not record the percentages or the wider terms. A separate signed document captures the shares, how proceeds will be divided, what happens on sale, and how a buyout is priced. Both parties should sign, date, and keep original copies.
5. Update your wills and review the arrangement periodically. A tenancy in common only achieves its full benefit if each owner has an up-to-date will setting out where their share should go on death. Review the agreement if circumstances change significantly — a new partner moves in, one owner funds major works, or someone wants to exit — and if you cannot agree changes between yourselves, remember that TOLATA 1996, section 14 is the court route of last resort, not the first step.

This guide provides general information about how tenancy in common works in England and Wales. It is not legal advice and is not a substitute for advice tailored to your specific circumstances, and nothing in it creates a solicitor-client relationship. The law described was accurate as at July 2026 and is subject to change — always check GOV.UK and legislation.gov.uk for the most current position, including current fees.