Each joint tenant owns the property in its entirety. A joint tenant cannot bequeath their share to someone else, as the whole property belongs to their co-owner. If one joint tenant dies, the other is automatically entitled to the entire property, irrespective of the terms of the deceased person’s Will.  Tenants in common each own a distinct share of the property, and can bequeath their share to someone else in their Will. They are presumed to have equal shares, unless there is evidence to the contrary. Tenants in common can choose to have unequal shares, for example to reflect the amount each contributed to the purchase price.

So if we’re tenants in common and I have the greater share, how can I protect my interest?
You need to ask a lawyer to draw up a legally enforceable document, called a Declaration of Trust, recording your respective shares and also how any increase or decrease in the value of the property is to be apportioned. Without this, you are presumed to own the property in equal shares. In some cases, you can challenge this presumption in court but it is a difficult, expensive process with no guarantee of success.

If our relationship breaks down, is my interest in the property protected?
It depends on your circumstances, including whether you are married/in a civil partnership or cohabiting. If there is, unfortunately, no future for your relationship, and if you own a property as joint tenants, it is usually advisable to switch straight away to tenants in common. All you need to do is give your former partner notice in writing that you are severing the joint tenancy. There’s no requirement for them to agree, or even acknowledge the notice. You will then own a distinct half share of the property (subject to mortgage, if any). If you died, your half share would pass under your Will or the intestacy rules (if you had no Will). It would not automatically go to your former partner. This gives you some protection in the interval between the relationship breaking down and you entering a separation agreement or finalising your divorce/dissolution of civil partnership.

In the longer term, do I get to keep my share in the property (or its sale proceeds)?
If one of you applies for a financial settlement in the context of divorce/dissolution of civil partnership proceedings, potentially all of your assets are put into the “pot” to be divided between you. The court has a number of options for dealing with properties, including the family home e.g. transfer it into the name of one party; sell it now and divide the proceeds as the court sees fit; allow one party to live in it e.g. as a family home for them and the children until the youngest finishes school, then sell it and divide the proceeds between you. The outcome depends on all the circumstances of your case, including which other assets and how much income each of you has.

If you are not married or in a civil partnership, it depends on whether you and your former partner entered into a Cohabitation Agreement, recording what happens if your relationship breaks down and what each of you is entitled to. This should include provision for any properties you own. If there is no Cohabitation Agreement, in the eyes of the law neither of you has any financial obligation towards the other. One of you can buy the other out (subject to your mortgage company’s consent), or the property can be sold and the net sale proceeds divided between you. Unless you have a Declaration of Trust stating otherwise, it will be presumed that each of you is entitled to half.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Houses are usually freehold. Subject to any mortgage, you own everything outright – the building and surrounding land. Flats are usually leasehold. You own the right to live in it for the remainder of the lease (it’s a long lease, often 99 or 125 years), and to access any communal areas. The freeholder owns the building and surrounding land. When the term of the lease comes to an end, and if it is not extended, the flat reverts to the freeholder.

So if I buy freehold, I can do what I like with the property and the land it’s on?
Broadly speaking, yes. Subject to planning laws, restrictions if it’s a listed building, and consent from the lender if it’s subject to a mortgage, you can make alterations e.g. put in a new kitchen or bathroom or convert the garage into a gym. The downside is that you are solely responsible for maintenance and repairs to the whole property. If roof tiles blow off in a storm, or minor subsidence causes cracks to the walls, you have to sort it out yourself.

And if I buy leasehold?
You have less freedom to alter the property and usually need the freeholder’s consent. Certain things may be prohibited, like knocking down internal walls. If you intend to refurbish, check if the freeholder will grant permission. You also have a positive obligation to maintain the property’s interior e.g. by redecorating every 5 years. With a freehold property, it is up to you if and when you redecorate. On the plus side, the freeholder is responsible for the building’s structure and communal areas, so you don’t have to carry out repairs to them, though you have to contribute to the cost.

I have to pay for the upkeep of a property I don’t even own outright?
Yes, there are charges payable by a leaseholder: ground rent as technically you rent the property (it may be a nominal sum, say £10 per year), service charges for day to day maintenance (e.g. cleaning of communal areas, gardening), and major works charges for large scale maintenance (e.g. redecorating the outside of the building). Before you buy, ask to look at the management accounts and check you can afford these charges.

So is it OK to buy leasehold, or should I hold out for a freehold property?
Leasehold is the norm if you’re buying a flat. Check the remaining term of the lease: as it gets shorter, the property’s value falls and it can be hard to sell on. Mortgage companies are also reluctant to lend funds for a property with a short lease. You may be entitled to extend the lease, and there will be a charge for doing so. Make sure you can afford it.

Also check who owns the freehold: a private landlord or a group of leaseholders who have bought the freehold and manage the property. If the latter, you can buy a share of the freehold, giving you a say in how it is run. If the leaseholders in your block have not yet bought it and you want to, there are rules entitling a group of you to do so in certain circumstances, so take legal advice.

If you’re buying a house, freehold is the norm. Be careful though, as property developers now sell leasehold houses as a way of making more money. Ground rent starts off at a modest rate, then increases significantly. You have the right to buy the freehold for a sum which is reasonable at the outset, but increases disproportionately. Buyers have ended up unable to pay ground rent or buy the freehold. If you want to buy a house that’s advertised as leasehold, ask lots of questions and take legal advice before committing to the purchase.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Sadly, there is increasingly a risk that at some stage during the purchase or sale, fraudsters may try to hack into your email correspondence, hoping to create fraudulent emails based on previous correspondence and thereby persuade you to transfer significant funds (such as completion monies) to the fraudster’s bank account. The following steps can help to stop you becoming a victim of this sort of cyber crime:

1. Ensure that all your internet access (laptop, i-pad, mobile phone) is protected by security software and keep it updated. Be careful about using free wifi in public places such as cafes or on transport systems, as it is not always secure.
2. Use passwords to protect email and other online accounts, especially on mobile devices which are more easily lost or stolen. Choose passwords that have a “high” security rating (e.g. comprise letters, numbers and symbols), and avoid the same password for multiple accounts. Change your passwords frequently.
3. Resist the temptation to update family and friends on your sale/purchase via social media. Even if you have high security settings, others who see and share your post might not. Information could end up in the hands of fraudsters looking for details of lucrative transactions, including property addresses and completion dates.
4. If you are instructing solicitors, conveyancers and/or estate agents, do your research to ensure they are reputable. Check they are registered with the relevant professional body. Where possible, follow personal recommendation. Be wary of those who operate only online, without proper business premises, and/or offer exceptionally low fees.
5. Avoid communicating sensitive information like bank account details by email, as it could be intercepted by hackers. Do so in person, by secure letter, or by telephone if you know the person you are talking to. If someone you do not recognise calls to discuss the transaction, tell them you will call back, then check if they are genuine (e.g. by phoning the organisation they claim to be from).
6. Learn how to recognise fraudulent emails:
   a. A business email address usually incorporates the business name. Be suspicious of emails from free email account providers like hotmail, gmail, yahoo.
   b. Be wary of emails that urge you to take immediate action and warn of negative consequences if you do not, such as the sale falling through.
   c. Be wary of emails that ask you to do something like click on a link or enter information, as doing this may enable the fraudster to access your email account.
   d. Look out for poor spelling and grammar which may indicate a fraudulent email.
7. Beware of instructions you receive to change bank account or payment details. In one case, fraudsters posing as solicitors acting in a transaction stole funds by claiming that their main bank account was being audited, and completion monies should be sent to a new account.
8. If you become suspicious that you may be the target of cyber criminals, alert those acting for you in the transaction and on the other side. If there is no innocent explanation for the suspicious behaviour, contact the police.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.