Two or more people buying together must decide how they hold the property. It is usually presented as a technicality and answered quickly. It determines what happens to the property when one of them dies, and it is very often decided without anyone thinking about that.
The Two Ways
As joint tenants, the owners hold the whole property together without distinct shares, and on a death the survivor takes the whole by survivorship — the deceased’s interest passes to the co-owner automatically, outside the will. That is generally what married couples want and it is generally what they get. As tenants in common, each owns a distinct share, which can be equal or unequal, and on a death that share passes under the deceased’s will or under the intestacy rules rather than to the co-owner. It is the appropriate choice where the parties are contributing unequally, where each wants their share to go to their own children, or where the co-owners are family members or friends rather than a couple. Neither is right in the abstract. What is wrong is choosing without knowing the difference, which happens routinely because the question arrives in the middle of a purchase when everybody is thinking about other things.
Where It Matters Most
Unmarried couples should think about it hardest, because the legal position between them is not the same as between spouses, and the property is frequently their largest asset. Unequal contributions — where one party puts in a substantially larger deposit, or a parent contributes — deserve an explicit decision about shares and, frequently, a written agreement recording it. Family co-purchases, such as siblings buying together or a parent going on the deeds to assist with a mortgage, are almost always better as tenants in common, and raise their own succession and tax questions that belong with your accountant. And in every case the point that ties it together: this decision and your will belong in the same conversation. Holding as tenants in common while leaving no will, or holding as joint tenants while assuming a will governs the property, are two of the more common and more painful mistakes — and both surface at the worst possible time. It can be changed later, but changing it is a further transaction and requires agreement.
Ask the question before you are asked it. Raising joint ownership at the first meeting, rather than having it arrive as a form to sign, is the difference between a decision and a default.
Buying with somebody else? 01 5827148.
Richard O’Shea — Solicitor & TEP
Solicitor at Mary Molloy Solicitors, established 1981, with an office at 2 Rose Inn Street in Kilkenny city centre and a second office in Dublin. The firm handles residential and rural conveyancing across Kilkenny and the south-east — buying, selling, sites and farmland, family transfers, remortgages and transfers of equity. Richard is a TEP of the Society of Trust and Estate Practitioners, which matters more in conveyancing than people expect: a great many property transactions in Kilkenny arise out of an estate, a family transfer or a succession plan, and those need both sides handled together. Nothing here is tax advice — stamp duty and any gift or inheritance tax questions belong with your accountant and Revenue. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about conveyancing and property law in Ireland. It is not legal advice and does not create a solicitor—client relationship. Every transaction turns on its own facts — the title, the planning position, the lender’s requirements and the contract — and advice on yours requires a consultation.
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