What is Severance of Tenancy?
In earlier times, only men could own property, and the habit developed of putting property in the man’s name only, even when women had the same rights. These days, that would be very unusual, except with older couples, who would be well advised to consider updating the title to include both partners.
If there is more than one owner the “standard” way it is owned is Joint Tenancy
This means that both owners own 100% of the property, not a divided share. You have equal rights to the whole property, and if the property is sold you will each be entitled to an equal share of the proceeds. But when one owner dies the remaining owners will automatically own the whole property. This means that a joint tenant cannot gift their interest in the property to anyone by their Will.
This leaves the ownership vulnerable to later remarriage, predatory or otherwise and to creditors. A little planning can dramatically reduce this risk, and my fee for that work is less than many charge for a pair of normal Wills.
Unless they convert to Tenants in Common
You each own a share in the property. This is usually, but not necessarily, an equal share. This is an attractive option for people purchasing a property together and contributing different amounts towards the deposit.
Under a tenancy in common, each owner can deal with their share in the property separately, allowing them to gift their share to their own beneficiaries by their Will. This also opens up more opportunities for planning to protect their share of the property by using trusts in their Will.
This is especially useful for blended families and business owners who might be sued for allegedly bad advice, for contracts unfulfilled, faulty workmanship, etc, as at least only part of the property is at risk. Sometimes, even a full lifetime trust may be appropriate, but in such circumstances the severance needs to be historic, not recent.
How can I check how my property is held?
I can download the title register from the land registry website and confirm how you hold your property. There is a small cost, to cover the Land Registry fee.
Can a title be severed from joint tenants to tenants in common?
Yes, it can be.
To sever the title so the home is held as tenants in common, a notice of severance would need to be completed and signed by all the owners. We would advise 3 copies are signed – one kept with me, one copy remains with you and the other copy is stored with the Will.
A SEV form would also be completed and sent to the land registry who will then update the title register.
A common misconception is that the SEV form itself is evidence of the severance to tenants in common but this is not the case. The notice of severance is the document which evidences your intention to own the property as tenants in common.
Do I have to instruct a conveyancer to carry out the severance?
No.
Does the severance have to be mutually agreed between the home owners?
No. There may be a situation where a home is owned jointly by husband and wife. However, they are no longer on talking terms and wife wishes to sever the tenancy. This can be done and is otherwise known as a unilateral severance.
Is there a fee to submit the SEV form?
There is no fee for submitting the SEV form at present.
Is it the same process if my home is unregistered?
If your home is not registered with the land registry, you can only complete the notice of severance. The SEV form is only completed for properties that are registered with the land registry.
We will encourage you to register your home during your lifetime if your property is unregistered, as it can be far more complex for those left behind.
What happens if I die before the title register is changed?
If the notice of severance has already been signed, this evidences your intention to hold the property as tenants in common. It is the notice of severance and not the SEV form that indicates the intention to hold the property as tenants in common.
If, however, no notice of severance was signed before you pass away, the property would still be held as joint tenants and therefore the deceased’s share would automatically pass to the surviving owner.
What do I do if the title register is in my maiden name still? Should I change my name with the land registry first?
There is no need to wait for the name to be changed before the title is severed.
The notice of severance and SEV form can be completed in your married name. You can also send form AP1 to the land registry to change the name. This can be sent at the same time as the SEV form so it can all be processed by the land registry together. It is likely the land registry will need proof of the name change i.e. marriage certificate.
