Establishing a beneficial interest (joint ownership)
Establishing a beneficial interest (joint ownership)

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Establishing a beneficial interest (joint ownership)
  • Requirements for a valid declaration of trust
  • Effect of express declaration of trust
  • Joint tenancy and the effect of severance (Stack v Dowden)
  • Confirming Stack v Dowden (Jones v Kernott)
  • Other cases
  • Practical implications
  • Claims

Where two or more people together own real property, they hold it under a trust of land. Where property is held on a trust of land, the legal estate and equitable estate are separate. The legal estate must be held by the co-owners as joint tenants. The beneficial interest in the property can, however, be held by the co-owners either as:

  1. joint tenants, or

  2. tenants in common

If the co-owners are joint tenants, each has an indivisible share in the property, where each owns the whole, rather than an identifiable share of the property. The right of survivorship applies so on the death of one joint tenant, the deceased's interest in the property passes automatically to the other(s).

Where the beneficial interest is held as tenants in common, interests can be unequal, and the share of one does not pass to the survivor but is part of the deceased's estate.

A tenancy in common may arise on the original transfer or conveyance where there is an express declaration of trust, or where an existing joint tenancy is severed.

Requirements for a valid declaration of trust

Declarations of trust in respect of land, or any interest therein, must comply with section 53(1)(b) of the Law of Property Act 1925 (LPA 1925) and must be ‘manifested and proved by some writing signed by some person