Joint tenants or tenants in common: which is better for co-owning landlords?

In England and Wales, co-owning landlords usually choose between joint tenancy and tenants in common for the beneficial ownership behind the title, not for the legal title itself. Scotland uses different concepts: co-owners hold pro indiviso shares, and survivorship depends on destination wording rather than the labels “joint tenants” or “tenants in common”.

Is tenants in common a good idea?

Tenants in common is a good idea for co-owning landlords in England and Wales when they want defined shares, unequal contributions, or the ability to leave their share by will, but it is less neat than joint tenancy where the owners want automatic survivorship. The core advantage is estate planning: GOV.UK says that as tenants in common “you can pass on your share of the property in your will”. The common disadvantages of tenants in common are that the arrangement needs clearer paperwork, can expose disagreements about sale or inheritance, and may not feel as simple for couples who want the survivor to take everything automatically. Changing from joint tenants to tenants in common has no HM Land Registry fee — GOV.UK says “There’s no fee to do this” — but that does not mean the wider transaction is always tax-free, especially where mortgages and unequal interests are being rearranged. In Scotland, the nearest planning choice is usually pro indiviso shares, not tenants in common.

What are the disadvantages of joint tenancy with right of survivorship?

The main disadvantage of joint tenancy with right of survivorship in England and Wales is that the surviving owner takes automatically, so a landlord cannot leave their share to children, a spouse from a later marriage, or anyone else by will. GOV.UK states the point bluntly for joint tenants: “you cannot pass on your ownership of the property in your will”. For landlords, that can be a poor fit where contributions are unequal, where investors want fixed economic shares, or where blended-family planning matters more than administrative simplicity. It can also block tax planning for married couples and civil partners with unequal beneficial ownership, because HMRC says: “A declaration cannot be made where a husband and wife or civil partners own property as beneficial joint tenants.” Bankruptcy is another risk, because it can sever a joint tenancy automatically. In Scotland, comparable survivorship wording can also be rigid, because solicitor guidance says it “cannot be altered without the agreement of all the owners.”

How can you tell whether you own as joint tenants or tenants in common?

In England and Wales, you tell whether the beneficial ownership is joint tenants or tenants in common by checking the transfer, trust deed or declaration of trust; the title register alone is useful but not conclusive. The sharp distinction is that legal title to co-owned land is always joint, because the Law of Property Act 1925 says: “A legal estate is not capable of subsisting or of being created in an undivided share in land”. A Form A restriction is strong evidence that tenants in common was intended, and its standard wording begins: “No disposition by a sole proprietor of the registered estate…”, but it does not prove the point on its own. HM Land Registry says that if the application does not clearly select joint tenants or tenants in common, “we must enter a Form A restriction by default.” England’s usual “presumed joint tenancy” position is case law as reflected in HMRC guidance, not a statute. Scotland has no equivalent labels: Registers of Scotland says survivorship depends on title-sheet wording. Abodient can hold the declaration of trust or Form 17 filing against the property record, so the ownership split behind a joint purchase is documented alongside the rent and tenancy records.

Can you be tenants in common with unequal shares?

In England and Wales, legal title can never be held as tenants in common or in unequal legal shares; only the beneficial interest behind that legal title can be tenants in common with unequal shares. The Law of Property Act 1925 provides that “A legal estate is not capable of subsisting or of being created in an undivided share in land”, and HM Land Registry’s Practice Guide 24 states the operational rule: “Joint owners must hold the legal estate as joint tenants, but their beneficial interests may be held either as joint tenants or as tenants in common.” That means two landlords can be registered legal owners while agreeing beneficial shares such as 70/30, 60/40 or any other split in a declaration of trust. For married couples and civil partners, the tax default is still 50/50 unless the real unequal split is declared correctly: the Income Tax Act says they are “treated for income tax purposes as beneficially entitled to the income in equal shares,” and HMRC Form 17 is used to change the split to actual ownership.

How many people can be on a joint tenancy?

“Joint tenancy” can mean co-owning a property or signing one tenancy agreement: in England and Wales, co-owned legal title is capped at four owners, while a tenancy agreement has no fixed headcount cap but five or more occupiers from separate households can trigger HMO licensing. For property ownership, the Trustee Act 1925 says “the number of trustees thereof shall not in any case exceed four,” and where more than four are named, “the four first named… shall alone be the trustees.” So yes, three people can own as joint tenants in England and Wales, but five cannot all be legal owners. For a rental tenancy agreement, the issue is different: a landlord may have three, four or more joint tenants on the contract, but in England mandatory HMO licensing applies where the property “is occupied by five or more persons” and the other HMO conditions are met. Scotland and Northern Ireland do not use the same English four-owner rule in the same way; Scotland also does not use the terms joint tenants and tenants in common.

Last reviewed August 2026.

Sources

• GOV.UK, Joint property ownership — “you can pass on your share of the property in your will” Source
• GOV.UK, Joint property ownership — “There’s no fee to do this.” Source
• GOV.UK, Joint property ownership — “you cannot pass on your ownership of the property in your will” Source
• HMRC Trusts, Settlements and Estates Manual TSEM9850 — “A declaration cannot be made where a husband and wife or civil partners own property as beneficial joint tenants.” Source
• LexisNexis legal Q&A — “Bankruptcy severs a joint tenancy as a matter of course.” Source
• Thorntons Law, Scottish survivorship destinations — “A Survivorship Destination cannot be altered without the agreement of all the owners.” Source
• Law of Property Act 1925 s.1(6) — “A legal estate is not capable of subsisting or of being created in an undivided share in land or of being held by an infant.” Source
• Land Registration Rules 2003 Sch.4 — “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.” Source
• HM Land Registry blog, What kind of joint ownership do I have? — “If you don't select either joint tenants or tenants in common on this form, or it isn't clear to us which you have decided on, we must enter a Form A restriction by default.” Source
• HMRC Trusts, Settlements and Estates Manual TSEM9230 — “Where property is held in the joint names of 'A and B', it is presumed to be held beneficially as joint tenants, as described in TSEM9210.” Source
• Registers of Scotland, Co-own property with someone who died — “Some title sheets have wording which means that, on the death of a co-proprietor, their share transfers automatically to the person who is still alive (the survivor).” Source
• HM Land Registry Practice Guide 24 — “Joint owners must hold the legal estate as joint tenants, but their beneficial interests may be held either as joint tenants or as tenants in common.” Source
• Income Tax Act 2007 s.836(2) — “The individuals are treated for income tax purposes as beneficially entitled to the income in equal shares.” Source
• HMRC Form 17 guidance — “Use this form if you want to change the split of income to your actual share of ownership.” Source
• Trustee Act 1925 s.34(2)(a) — “(a)the number of trustees thereof shall not in any case exceed four, and where more than four persons are named as such trustees, the four first named (who are able and willing to act) shall alone be the trustees, and the other persons named shall not be trustees unless appointed on the occurrence of a vacancy;” Source
• Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 art.4(a) — “(a)is occupied by five or more persons;” Source
• Harper Macleod, Buying a house with a friend in Scotland — “In Scotland the terminology is different and we do not have “tenants in common” and “joint tenants”.” Source