1.1 Who should read this practice note?
All solicitors involved in conveyancing.
1.2 What is the issue?
Recent case law has clearly demonstrated the benefits of joint owners of property declaring their beneficial interests. Declaring interests at the outset of a transaction provides clarity about the parties' intentions and may help to avoid disputes in the future.
There has always been some uncertainty regarding the position of joint owners who have not made an express declaration of their interests. It was hoped that the House of Lords would clarify the position in Stack v Dowden, but that decision, and the subsequent decision of the Supreme Court in Jones v Kernott, have only demonstrated the many difficulties surrounding the law in this area.
Following Baroness Hale's comments in Stack v Dowden, (paragraphs 50 to 56) Land Registry introduced Form JO (PDF 35kb).
The purpose of Form JO is to make it easier for conveyancers to arrange for joint purchasers to make a declaration of trust within the short timescales between exchange of contracts and completion in conveyancing transactions. Conveyancers can also use Form JO in circumstances where they do not wish to let a transfer signed by the seller leave their possession.
Form JO is an alternative means for joint owners to declare their interests, or to provide details of an existing separate declaration of trust. Completion of Form JO is voluntary. For further details, see section 4.1.2.
This practice note is limited to express declaration of trusts made at the time of acquisition. It does not deal with practice in relation to equitable interests, nor implied, resulting or constructive trusts. It does not include matters relating to variation or severance of trusts.
Jones v Kernott raises several issues that cannot solely be addressed by using Form JO - these issues are also not discussed in this practice note.
2 Joint ownership
2.1 General comments
Where a property is purchased in joint names, the parties will hold the legal estate as joint tenants and the beneficial interest in the property as either joint tenants or tenants in common. Joint tenants are entitled to an equal share of the property, whereas tenants in common are able to hold the property in either equal or unequal shares.
The simplest method of recording whether the parties intend to own the property in equal or unequal shares is to make an express declaration to that effect using a Land Registry form or a separate trust instrument. This may avoid disputes in the case of death, relationship breakdown or sale of the property.
Most disputes in this area occur between unmarried co-habitees, but such disputes can also arise between family members, friends or business partners who purchase property together.
Joint purchasers of property may need to be advised separately, even if they are married, in a civil partnership or cohabiting. You should be aware of the possibility of a conflict of interest arising in this situation and consider whether the parties should be advised to seek separate representation - for example, where the parties are making uneven contributions to the purchase and you have a suspicion of undue influence. Different factors may need to be taken into account in commercial situations.
2.2 Express declaration of trust
An express declaration of trust can be made using a Land Registry form or a separate trust instrument.
An express declaration of trust is generally conclusive as to the parties' respective interests in the property - Goodman v Gallant (unless there is mistake, fraud or another factor that invalidates that declaration, or unless a court determines otherwise.) In Pankhania v Chadegra, the Court of Appeal held that where an express declaration of trust is made in a transfer, the Court must give it legal effect unless there is a vitiating factor, such as fraud or mistake.
If the owners expressly declare themselves to be joint tenants and the property is subsequently sold, the assets will be divided between the parties in equal shares. If the owners are tenants in common and expressly declare the shares in which they hold the property, the proceeds of sale will be divided in those proportions.
2.3 No express declaration of trust
If an express declaration of trust is not made at the time of acquisition, the position is more complicated.
Entries at Land Registry record the ownership of the legal estate. They do not record beneficial interests. It can therefore be extremely difficult to determine the share in the property that each party is entitled to if their individual interests are not recorded at the time of purchase.
Where a property is purchased in joint names and there is no express declaration of trust, the general presumption is that equity follows the law ie that the parties hold the property as joint tenants. However, following the recent decisions in Stack v Dowden and Jones v Kernott, there is considerable uncertainty in this area of the law.
In Stack v Dowden, the House of Lords held that, where no express declaration of trust has been made, the parties will be presumed to be joint tenants and entitled to equal shares in the property unless one party can show that the property was intended to be held differently. A wide range of factors can be taken into account to show this. However, it will only be in exceptional or unusual cases that a court will be persuaded that the parties intended something other than equal shares.
In Jones v Kernott, the Supreme Court broadly followed the approach in Stack v Dowden. They added that if it could be shown that the parties had intended to hold the property in separate shares, but that it was not possible to determine the size of the shares they had intended each to have, then the court would have to decide what was fair based on the whole course of dealing between the parties in relation to the property.
The presumption of entitlement to equal shares set out in Stack v Dowden does not apply to commercial property or to property purchased as an investment (see Laskar v Laskar).
In such cases, in the absence of any relevant discussions or agreements between the parties that show they intended otherwise, their beneficial shares will reflect the size of their contributions.
3 Making a declaration of trust
The decisions in Stack v Dowden and Jones v Kernott emphasise the difficulty in determining a party's share in a property where an express declaration of trust is not made. You should make your clients aware of the potential consequences of not making a declaration of trust at the time of acquisition. These may include:
- the possibility of dispute
- becoming involved in litigation later on and incurring costs as a result,
- the possibility that the court will divide the property in a way that is different from what the parties intended.
You should clarify whether your clients intend to hold equal or unequal shares in the property they wish to purchase. You should enquire as to how the purchase monies will be provided and, in the case of unequal contributions, consider how this may affect the position of each client (for example, undue influence). You should explain the differences between joint tenancies and tenancies in common, and advise your clients as to the general implications of the different forms of ownership. You may also wish to advise as to the effect of separation or death of one of the parties on each form of ownership.
You may record your clients' intentions in Form JO (PDF 35kb), Land Registry transfer forms, or other purchase documentation. You may also use a separate declaration of trust entered into at the time of acquisition.
If your clients intend to hold unequal shares in the property, you can record the size of the shares that your clients have agreed to own using a Land Registry form or a separate trust instrument. If you do not record the proportions of the property your clients intend to own at the time of acquisition, it could be difficult for them (or a court) to determine what the original intentions were in the event of a later dispute.
Your clients may not want details of their interests in the property to be contained in a Land Registry form or a deed and held at Land Registry as doing so may make them public. If your clients wish these details to remain confidential you may advise your clients to make a separate declaration of trust.
Land Registry will automatically enter a Form A restriction in the register whenever two or more persons apply to be registered as joint proprietors of an estate in land, unless it is clear that they will be holding the property for themselves alone as joint tenants.
Where this is not the case, you should consider whether it is necessary to apply to enter a Form A restriction for a tenancy in common in the register (see 4.4). You may also wish to advise your clients that, even though they have made an express declaration of trust, they can change the position jointly or unilaterally - for example, one party may give unilateral notice to change the ownership from a joint tenancy to a tenancy in common.
You should keep a record of any advice given to your clients and ensure that this is kept on file with a copy of your instructions. You may choose to invite clients to sign an instruction information to indicate their wishes in addition to Land Registry forms that have been lodged.
This may be particularly appropriate where the conveyancer is proposing to confirm a declaration of trust in Form JO on behalf of their clients.
3.1 Advice on associated matters
- warn your clients that unless you can advise fully, their shares in the property may be at risk
- advise on the desirability of protecting the position of either in the event of death of the other
- advise that the consequences of joint tenancies or tenancies in common will affect their lifetime position but that they may wish to protect their estate by making a will.
You should consider whether your clients should be advised on related areas of law, such as tax and estate planning. This may include advising as to the necessity of seeking financial advice on matters such as obtaining term or life insurance.
4 Methods of making a declaration of trust
4.1 Land Registry forms
You may wish to advise your clients that it is in their best interests to make a declaration of trust at the time of acquisition. If they do so, you can record their interest by completing the declaration of trust panel in the relevant Land Registry Form, or complete Form JO (PDF 35kb).
Completing the declaration of trust panel or Form JO will help Land Registry to decide whether a Form A restriction should be entered in the register.
Although details about the trusts will not appear in the register, any person may request copies of any lease or transfer containing the declaration of trust information from Land Registry.
4.1.1. Standard forms
All Land Registry's prescribed transfer and assent forms and prescribed clauses leases have declaration of trust panels which can be used to show whether the owners are holding a property as joint tenants or tenants in common, and what share of the property each party will own.
The declaration of trust panels also allow for details of a separate trust instrument to be given, where applicable. There are similar panels in Form FR1 for first registrations and Form ADV 1 for adverse possession of registered land.
Section 53 (1) (b) of the Law of Property Act 1925 requires that a declaration of trust must be evidenced in writing and signed. You should therefore ensure that your clients sign the relevant transfer, assent or lease, or complete and sign Form JO.
4.1.2. Form JO
Completing Form JO (PDF 35kb) is entirely voluntary.
Form JO is one of several methods you can use to declare your clients' interests in the property at the time of acquisition. Other methods of declaring interests are discussed in section 3.
Form JO is intended to be an alternative means for joint owners to declare their interests, or to provide details of an existing separate declaration of trust. It allows a declaration of trust to be made in the absence of a transfer, assent or lease.
Land Registry introduced Form JO in response to concerns raised about the difficulties that can occur when trying to obtain the signatures of joint owners to a transfer, particularly when the timescales are short.
You can use Form JO in circumstances where you do not wish to let the transfer itself out of your possession.
If panel 5 of the Form JO is completed to declare your clients' interests, they must each sign the form. You should sign the Form JO if you complete panel 6 to provide details of a separate declaration of trust. If you are signing, you should ensure that you have your clients' written authority to complete panel 6 and as to the manner in which they wish to hold the property jointly.
You should keep a record of their written authorisation and instructions on file.
4.1.3. When should you use Form JO?
There are several situations where you may use Form JO (PDF 35kb) to record your clients' interests in a property. These include where:
- panel 9 of Form FR1 or ADV 1 has not been completed and the applicant is more than one person, or ;
- Form AP1 relates to a transfer or an assent (in Form AS1, AS3, TP1, TP2, TR1, TR2 or TR5) or a prescribed clauses lease (within rule 58A of the Land Registration Rules 2003) of a registered estate to more than one person ('the joint owners'), and ;
- the declaration of trust panel in the transfer, assent or lease has not been completed and/or the transfer or assent has not been executed by the joint owners, and the estate transferred assented or leased is not a rentcharge, franchise, profit or manor.
You may also use Form JO if your client does not need to sign the transfer for example because they are not entering into or indemnifying in respect of any covenants, or if your clients have declared their interests using a separate trust deed or will.
If used, the Form JO should accompany the application to register transfer, assent or lease, or the Form ADV 1 or FR1, to which it relates.
Form JO should not be used upon severance of a joint tenancy. Form SEV or RX1 should be used instead.
As a result of the introduction of Form JO, Land Registry has updated the explanatory notes for the following forms:
- Transfer forms TR1, TR2, TR5, TP1 and TP2.
- Assent forms AS1 and AS3.
- Application forms FR1 and ADV 1.
However, the declaration of trust panels on these forms have not changed. You may therefore continue to use the previous versions of these forms.
4.2 Separate declaration of trust
You can use a declaration of trust to record your clients' interests in a property.
A declaration of trust is more detailed than the trust declaration panels on Land Registry forms and may include information such as how much each party contributed to the purchase price, the share that each party intends to hold in the property, how the property is to be divided if the parties separate and what the parties responsibilities are in respect of any mortgage or other outgoings.
You should advise on the difference between capital expenditure eg building an extension and income expenditure eg sharing of household expenses.
If you use a separate trust instrument, you can enter details of the instrument in the trust information panel on the relevant Land Registry form or in Form JO. You may also need to apply to enter a Form A restriction (see section 3).
4.3 Other methods of declaring the parties' interests
Completing the trust declaration panel of the relevant Land Registry form or using a trust instrument are not the only ways in which the parties can declare their interests.
The parties may wish to use a separate pre-nuptial, post-nuptial or separation agreement to declare their interests in the property, or they may already have such an agreement in place. In these circumstances, your clients may need to take advice from a specialist family practitioner.
4.4 Form A restrictions
An interest in land that arises under a trust can be protected by entering a restriction in the register. It cannot be protected by an agreed or unilateral notice.
When registering two or more persons as the proprietors of a registered estate in land, Land Registry will automatically enter a Form A restriction unless it is clear from the documents lodged with the application that the parties intend to hold the property for themselves alone as joint tenants (or they are being registered as personal representatives.)
This is because the registrar has a duty, under section 44(1) of the Land Registration Act 2002, when registering joint proprietors, to enter a Form A restriction to ensure beneficial interests in the land are overreached on a subsequent disposition.
Entry of the Form A restriction ensures that no disposition by a sole proprietor (except a trust corporation) under which capital money arises can be registered unless authorised by court order.
Land Registry will not automatically enter such a restriction where it is clear that the parties intend to hold the property as joint tenants for themselves alone.
In that case, a sole surviving proprietor can act alone on a subsequent disposition that gives rise to capital money and so the registrar's duty to enter a Form A restriction does not arise.
Land Registry only enters a Form A restriction without application when registering two or more persons as proprietors of an estate in land.
If a declaration of trust is made subsequently under which the parties are to hold the property as tenants in common, you must apply to enter a Form A restriction on the register.
4.5 Advice regarding costs
You must advise your clients that costs will arise in respect of the advice given.
5 More information and products
5.1 Law Society publications
Conveyancing Handbook, 19th edition
5.2 Land Registry publications
5.3 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays.
5.4 Land Registry enquiries
For queries relating to Land Registry, please contact Land Registry on 0844 892 1111.
The Law Society and Land Registry have worked in close collaboration on the production of this practice note and the copyright belongs to Land Registry and the Law Society.
Not to be reproduced without permission. For permission contact The Copyright Team, Land Registry, Trafalgar House, 1 Bedford Park, Croydon CR0 2AQ and Law Society Publishing, 113 Chancery Lane, London WC2A 1PL.
Copyright Land Registry and Law Society 2012