Joint Ownership
in the context of residential property joint ownership is where more than one person owns a property together. There are forms of joint ownership that have specific legal grounding. There are two main types, joint tenants and tenants in common.
* Joint tenants: neither party can sell without the other’s agreement. If one party dies, the other automatically inherits the other’s share. This is ideally suited to married couples or partners buying together who are in a long-term relationship.
* Tenants-in-common: each party can dispose of his or her share, either whilst alive or through a will. This is more appropriate for friends buying a property together, where they do not intend to live together as a couple.
(I recommend that you hold the property as ‘tenants in common’ so that if one of the owners were to die, their share in the property passes to their estate.)
If the joint ownership of the property involves a mortgage, then the mortgage will be on the basis of ‘joint and several liability’. This means that each buyer is liable to repay the whole of the mortgage if the others are unable or unwilling to do so.
A lender will make the offer of mortgage on the basis of the joint incomes of all applicants but ultimately it is up to the borrowers as a group to determine how they divide the monthly repayments on their joint mortgage. For example, if one applicant earns more than another, they might have a bigger share of the mortgage (and potentially, the property itself).
In fact, as long as all applicants are comfortable with the repayments, even if they have varying incomes they can agree to split repayments equally giving each of them a straightforward equal share in the mortgage.
Of course, the situation can be complicated where applicants have different deposit amounts. Even with different deposit amounts, it is possible to have equal ownership overall once the mortgage is taken into account. This is because the mortgage can be divided according to how the borrowers choose, and they can choose to divide the monthly mortgage payment so as to ‘even out’ the differences in deposit.
Because buying with others is a complicated process a proper legal agreement between the buyers is of great importance. It sets out the responsibilities one owes to the others and is there for the protection of all the owners.
Key points of a legal agreement for buying together.
1. The share each owner has in the property.
2. The percentage of the mortgage for which each owner is responsible.
3. In the event of one or more owners wishing to sell it specifies that they must first offer their share to the remaining owners, at the current market valuation:
* If the other owner/s wish to buy, they apply to the lender to take over the share of the departing person and if they are successful, the person selling their share is removed from the mortgage.
* If the remaining owners do not wish to purchase, either singly or together, or the lender will not increase the lending to enable them to do so, then the share may be offered on the open market.
* If no purchaser for the share can be found within a period of four months then the seller can require that the whole property is sold, each owner receiving their share of the remaining equity.
4. In the event that an owner wishes to vacate the property but retain their stake in it, he or she may rent out their part.
5. All owners agree to put in place and maintain life and critical illness insurance to the value of their share of the mortgage. Where an owner is unable to obtain cover due to medical reasons, he/she must advise the other co-owners. They may proceed at their discretion.
6. All owners undertake to put in place and maintain Accident, Sickness and Unemployment protection cover, sufficient to cover their share of the mortgage payments..
7. In the event of the death of one of the owners, his/her estate will be required to meet the cost of the deceased’s share of the monthly mortgage payment until redeemed (policy will be payable to the estate/beneficiaries). Their estate must offer their interest in the property, firstly to the other owners at the current market rate and, if they are not willing/able to purchase, then the estate may seek another purchaser – or indeed rent until a purchaser can be found.
8. In the event of a successful claim for critical illness being paid, the policy holder agrees to use the funds received to repay their share of the mortgage.
9. If one of the owners deliberately goes into default by absenting themselves without making arrangements to maintain their share of the mortgage – subject to a time-limit of two months, then the remaining owners can rent the absent party’s space (paying his/her share of the mortgage and retaining any profit for the aggravation) or purchase or sell his/her share of the property at the current market rate. Any residual monies, after deduction of reasonable expenses, will be placed, where possible, in the bank account of the absconder.
10. If one of the owners is in breach of the Agreement by failing to make their share of either the mortgage repayments or insurance premiums, then the other owner/s either singly or together can require that person to remedy the situation and should they fail to comply within a period of two months from the onset of the default, force the sale of the share of the defaulting owner as if they had absented themselves.
11. The owners will open a joint bank account or designate an account for the purpose of the payment of mortgage repayments and any insurance premiums. Each owner is responsible for making a timely payment into the account to cover his/her share of the above payments. Please note that it is not compulsory to open a joint account and a designated account of one of the applicants may be used until one is open.
