What is a deed of severance?
A deed of severance is a document which ‘severs the tenancy’ of a property so that instead of owning the property jointly it is held as tenants in common meaning that each person has a definite share in the property. This may be in equal shares but it does not have to be.
Joint Tenancy
If property is owned as a joint tenancy then the whole property, and proceeds of sale, belong to both owners as one. They do not have separate shares each – they both own the whole thing. This means that neither of them have a separate share which they can sell or leave in a Will. If one person dies then the survivor becomes the owner of the whole property (via the right of survivorship). The transferring of ownership via the right of survivorship occurs automatically.
Tenants in Common
It may seem that there is little advantage in defining separate shares in the property, particularly between married couples where it would be the intention that on the first death the property would automatically pass to the surviving spouse. However there are problems associated with owning a property jointly.
If a property is owned as a tenancy in common then it is documented as a ‘Trust Deed’ or a ‘Declaration of Trust’ and is signed by all co-owners.
In order to sever the tenancy of your property we will first need to check whether your property is registered with Land Registry. Most properties nowadays are, but there are a few homes still unregistered. To register a property for the first time will incur an additional fee, and we will need to provide Land Registry with your original property deeds.
If your property is registered, we will need to know whether your shares are considered equal, or whether you have disproportionate shares. This may sound strange, but sometimes, people who are in second relationships or second marriages may not have put equal shares into the new property.
Once we have established the share in which you wish to proceed, we will draft two new Wills, and prepare the deed of severance ready for you to sign. This will be accompanied by necessary Land Registry documents, which will finalise the severing of the tenancy with a ‘Form A’ restriction.
If you would like to know more about a Deed of Severance, please contact us.