If you jointly own a property and are considering making changes to how your ownership is structured, it’s vital to understand what a Notice of Severance is. Whatever reason you have for the change, property dispute or otherwise, the notice is an important document when protecting your beneficial interest in a property.
Under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), co-owners of property in England and Wales have specific rights and responsibilities. A Notice of Severance is a legal mechanism that allows a joint tenancy to be converted into a tenancy in common.
In this guide, property dispute expert Philippa Rowley explores in further detail what a Notice of Severance is in the context of property disputes and explains why they are so important.
What is the difference between Joint Tenants and Tenants in Common?
Where more than one person owns a property, the co-owners typically hold the property under a joint tenancy, where each party has an equal and undivided interest. Severance allows an individual co-owner to convert this joint tenancy into a tenancy in common, with each co-owner having a distinct and quantifiable share.
But what is the difference between Joint Tenants and Tenants in Common?
- Joint Tenancy: In a joint tenancy, co-owners share an undivided and equal interest in the entire property. The principle of survivorship means that if one co-owner passes away, their share automatically transfers to the surviving joint tenant(s) and does not form part of the deceased co-owner’s estate.
- Tenancy in Common: In contrast, tenants in common each own a specific, identifiable share of the property, which can be equal or unequal. There is no right of survivorship; if a co-owner dies, their share becomes part of their estate and passes according to their Will or the laws of intestacy.
What Does Severance of Tenancy Mean?
Severance allows an individual co-owner to convert this joint tenancy into a tenancy in common, with each co-owner having a distinct and quantifiable share.
This means each person owns a separate share of the property, which they can pass on through their Will. It’s an important step if one or more owners want to protect their share in the event of a relationship breakdown, or wish to pass it to someone other than the other co-owner(s).
What is a Notice of Severance and why is it important?
A Notice of Severance is a written notice which is sent to the co-owner(s) of the property, setting out your intention to sever the joint tenancy as explained above.
This change is particularly significant in situations involving severance of tenancy such as relationship breakdowns, estate planning, or financial disputes, as it provides each owner with the freedom to control their own share of the property.
Requirements for Valid Notice of Severance:
To be legally effective, a Notice of Severance must meet the following criteria:
- The notice must be clearly documented in writing.
- It must explicitly state the intent to sever the joint tenancy.
- The notice must be served on all co-owner(s) before any restriction is registered with HM Land Registry.
Although no particular wording is required, the language must leave no doubt about the desire to sever the joint tenancy.
Impact on Co-Ownership Disputes:
The Notice of Severance often arises in the context of disputes among co-owners, such as disagreements over the sale of the property, or the breakdown of a relationship with the co-owner(s).
In these circumstances, we strongly advise a notice of severance is served at the earliest opportunity.
How to Sever a Joint Tenancy
If you’ve decided to move ahead, here’s a quick guide on how to sever a joint tenancy, including what you should do after the drafting of a Notice of Severance:
- Step 1: Draft a Notice of Severance
As noted above, you should first create a written document stating your clear intention to sever the joint tenancy.
- Step 2: Serve the notice
Serve the Notice of Severance on the other co-owner(s). This can be done by post, hand delivery, or in a way that proves receipt.
- Step 3: Register a restriction
Apply to HM Land Registry to register a Form A restriction, which confirms the property is now held as tenants in common.
- Step 4: Seek Legal Advice
To avoid disputes or mistakes, it’s strongly recommended that you consult a solicitor before proceeding. Explore Talbot Law’s property litigation services below to discover how we can aid you in figuring out the best option for you.
Speak to our Property Litigation team
Are you looking to serve a Notice of Severance, or need guidance on your legal rights as a co-owner? If so, our dedicated Property Litigation team is here to help, call us today on 0800 118 1500 or complete the form below.
At Talbots Law, we act for both individuals and commercial clients across the Midlands, including homeowners, developers, property investors, and building societies. With decades of combined experience and a Legal 500-ranked Dispute Resolution department, you can rely on us for clear and practical advice.
Disclaimer
The contents of this blog or any other published by Talbots Law cannot be considered as legal advice. You should take no action without prior consultation with a qualified solicitor or legal professional. The contents of this blog refers to the process in England and Wales.