Declaration of Trust UK: Joint Property Ownership Guide

At a glance

• Legal title vs beneficial interest: since 1925, the legal title to a jointly owned property can only be held as a joint tenancy, by up to four named owners — Law of Property Act 1925, s.34. The beneficial interest behind that title is separate and can be held as joint tenants or as tenants in common.
• Joint tenants: everyone owns the whole property together; on death, the survivor(s) automatically inherit the deceased's share (the right of survivorship) — no Form A restriction is registered.
• Tenants in common: each owner has a distinct, definable share (equal or unequal) that passes under their will or the intestacy rules on death, not automatically to the other owner(s).
• Severance: any joint tenant can convert their beneficial interest into a tenancy in common by serving written notice on the other owner(s), unilaterally and without their agreement — Law of Property Act 1925, s.36(2).
• Form A restriction: HM Land Registry registers this on the title whenever a property is held on trust for co-owners as tenants in common, to make sure a sale by a single surviving trustee cannot go ahead without a second trustee being appointed. There is no fee to register it using form SEV.
• If co-owners disagree: any trustee, or anyone with an interest in the property, can apply to court under TOLATA 1996, s.14; the court decides using the factors in s.15, including the purpose the property was bought for and the welfare of any minor who lives there.
• Stamp Duty Land Tax: a Declaration of Trust that simply records an existing beneficial interest usually does not trigger SDLT, but transferring a share for "chargeable consideration" — cash, or taking on a share of an outstanding mortgage — can do, above the current threshold. Always check current rates on GOV.UK.

What a Declaration of Trust is, and why the ownership structure matters

A Declaration of Trust, sometimes called a Deed of Trust, is a written agreement that records the beneficial ownership of a property held in two or more names. The legal title shown at HM Land Registry and the beneficial interest — who actually owns the money tied up in the property — are two different things, and the split between them is not a matter of choice for the legal title. Since the Law of Property Act 1925 came into force, land conveyed to more than one person operates as if it had been conveyed to those grantees (or, if there are more than four, the first four named) as joint tenants of the legal estate, holding it in trust for whoever is actually entitled to it.

That means the legal owners on the register are always joint tenants of the legal title, however they have agreed to divide the underlying value. What a Declaration of Trust does is fix, in writing, how the beneficial interest is actually held between them — as equal or unequal shares, calculated by reference to deposits, mortgage payments, renovation costs, or however else the co-owners agreed to measure their contributions.

Joint tenants vs tenants in common: the beneficial interest

Where co-owners hold the beneficial interest as joint tenants, none of them owns a separate, quantifiable share — they own the whole together, and the right of survivorship applies automatically when one dies. Where they hold it as tenants in common, each owns a defined share (which does not have to be equal) that forms part of their estate and passes under their will, or under the intestacy rules if they have not made one.

A Declaration of Trust is used almost exclusively with a tenancy in common in equity, because that is the only structure where individually calculated, unequal shares make legal sense. If co-owners are beneficial joint tenants and simply want the default 50/50 (or equal) split with automatic survivorship, a Declaration of Trust is usually unnecessary — though some couples still use a short one to record how running costs will be split day to day.

The Form A restriction at HM Land Registry

When a property is registered with two or more legal owners, HM Land Registry considers whether a Form A restriction is needed. Its purpose, as set out in HM Land Registry's Practice Guide 24, is to give effect to section 27(2) of the Law of Property Act 1925 (as amended by TOLATA 1996): proceeds of sale or other capital money cannot be paid to, or applied by the direction of, fewer than two trustees. In practice this means a lone surviving trustee cannot sell the property and give a valid receipt for the money without a second trustee being appointed first — a safeguard for whoever holds the other beneficial share.

A Form A restriction is registered whenever the co-owners hold the property as tenants in common, or whenever the register does not make clear that they are beneficial joint tenants. If you do not tell HM Land Registry which structure applies, it will enter a Form A restriction by default. No restriction is needed, or entered, where the owners are beneficial joint tenants, because the trust simply ends when only one of them is left.

Severing a joint tenancy

If co-owners started out as beneficial joint tenants but want to move to a tenancy in common — commonly because their contributions have become unequal, or a relationship has broken down — either of them can sever the joint tenancy without needing the other's agreement. Under section 36(2) of the Law of Property Act 1925, a joint tenant serves a written notice of severance on the other owner(s), or does another act that would have severed the tenancy in personal estate.

Once notice has been served, GOV.UK's guidance sets out how to update the title: complete form SEV to register a Form A restriction, enclosing a signed copy of the notice of severance where possible, or evidence that it was properly served if the other owner will not co-operate (for example proof it was sent by recorded delivery and not returned undelivered). The form is sent to HM Land Registry's Citizen Centre, and there is no fee to register it. Severing the joint tenancy changes only the beneficial interest — it does not, by itself, fix what each owner's resulting share should be, which is exactly the gap a Declaration of Trust is used to close.

What the Declaration of Trust should cover

1. Confirm the ownership structure. State clearly that the beneficial interest is held as tenants in common (if that is the intention), and, where relevant, that a joint tenancy has been or will be severed under section 36(2) of the Law of Property Act 1925.
2. Set out each owner's share and how it was calculated. Record what each person is contributing to the deposit, the mortgage, legal fees, Stamp Duty Land Tax and any planned improvements. Shares can be fixed percentages or a formula tracking actual contributions over time — write down the figures relied on so there is no argument later about what was agreed.
3. Decide what happens if one owner wants out. Cover how a sale is triggered, how long the other owner has to buy out the departing share, and how the property will be valued if the co-owners cannot agree a price. Pre-emption rights (giving the remaining owner first refusal) are common.
4. Deal with running costs. Mortgage payments, buildings insurance, council tax, utilities and repairs all need to be allocated, and any departure from the headline share (for example, one owner paying more of the mortgage) should be recorded, or that owner may find they have no claim to a larger slice on sale.
5. Sign, date and store the Deed. It should be signed by all parties, witnessed, and kept safely by each owner. Tell your mortgage lender if the Declaration affects how proceeds are split, and register a Form A restriction at HM Land Registry if the beneficial interest is held as tenants in common.

If co-owners cannot agree: applying to court under TOLATA 1996

Where co-owners cannot agree — for example about selling the property, or about what each person's share actually is — section 14 of the Trusts of Land and Appointment of Trustees Act 1996 allows any trustee of the land, or anyone with an interest in the property subject to the trust, to apply to the court for an order. The court can make orders relating to how the trustees exercise their functions (including relieving them of a duty to consult another owner) or declaring the nature or extent of a person's beneficial interest. It cannot, however, use section 14 to appoint or remove trustees.

In deciding what order to make, the court must have regard to the factors in section 15 of the same Act, including the intentions of whoever created the trust, the purposes for which the property is held, and the welfare of any minor who occupies or might occupy it as their home. A clearly drafted Declaration of Trust is powerful evidence of those original intentions, which is precisely why co-owners are better protected putting one in place before a dispute arises rather than trying to reconstruct the arrangement from memory once relations have broken down.

What happens if one owner dies

The outcome depends entirely on how the beneficial interest is held. If the co-owners are tenants in common, the deceased's share passes under their will, or under the intestacy rules if they died without one — it does not go automatically to the surviving co-owner. If they are beneficial joint tenants, the right of survivorship applies and the whole property passes automatically to the survivor(s), regardless of what any will says. Because of this, people who want their share to go to someone other than a surviving co-owner — a child from an earlier relationship, for example — usually need both a severed tenancy in common (or a Declaration of Trust confirming one already exists) and a will that deals expressly with that share.

Stamp Duty Land Tax and other costs to consider

Putting a Declaration of Trust in place is not automatically a tax-free exercise. HMRC's guidance on transferring ownership of land or property confirms that Stamp Duty Land Tax can become payable whenever "chargeable consideration" changes hands on a transfer of a share — this includes not just cash payments but also one owner taking on responsibility for a larger share of an outstanding mortgage. A Declaration of Trust that merely records an existing beneficial interest, with no change in who owns what, does not usually trigger a new SDLT charge. But if the document actually transfers a bigger share to one owner — for instance when a parent's contribution is being formally recognised as a loan converted into a share — it is worth checking whether the value involved exceeds the current SDLT threshold, which is published and updated on GOV.UK. Registering a Form A restriction using form SEV, by contrast, currently carries no HM Land Registry fee — but always check the current position before relying on either point, as thresholds and fees are subject to change.

How to put this in place

1. Work out the ownership structure. The legal title will always be held as a joint tenancy (up to four named owners). Decide whether the beneficial interest should be a joint tenancy or a tenancy in common — a Declaration of Trust is almost always used with the latter.
2. Sever an existing joint tenancy if needed. If you are currently beneficial joint tenants and want individual shares, serve a written notice of severance under section 36(2) of the Law of Property Act 1925 and register form SEV with HM Land Registry.
3. Agree and record each share. Work out exactly what each person has contributed, and put the figures in writing in the Declaration of Trust, along with what happens if someone wants to exit.
4. Sign, date and witness the Deed, and keep copies safely.
5. Tell your mortgage lender if the Declaration affects the split of sale proceeds, and confirm the Form A restriction is correctly reflected on the title register.
6. Take advice early if contributions are unequal, a parent is helping with money, or the relationship between co-owners could change — getting the structure right at the outset is far cheaper than an application to court under TOLATA 1996 later.

This guide provides general information about Declarations of Trust and joint property ownership in England and Wales. It is not legal advice and is not a substitute for advice tailored to your specific circumstances. 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.

Last reviewed: July 2026 by a non-practising solicitor · Next review due: July 2027 or on legislative change.