In the old days, Form 19(JP) did not provide for the owners to say how they were holding the beneficial title; it merely asked whether the survivor was able to give a valid receipt for capital moneys. In practice, few unmarried couples prepared a separate agreement (eg a declaration of trust) setting out their beneficial interests. The arrival of Form TR1 has improved things, because box 11 now deals with this point. But, as an article in the Property Law Journal points out, we still have to make sure that our clients understand the implications of the documents and transactions they are entering into – and that the basic differences between joint tenancy and tenancy in common are explained to them. In addition, you should make sure that your explanation is recorded on the file (to avoid future arguments), and you should advise the clients that the extent of their respective shares should be recorded in a declaration of trust, to be recorded in box 11 of TR1. This is a simple process and there really is no excuse for any conveyancer to avoid doing it.

As always, you must make sure that your clients understand what you are talking about. In practice, it is not often that a couple contribute equally to a purchase and then continue contributing equally throughout the lifetime of their relationship. Accordingly, good advice should extend to telling clients that they should regularly look at the beneficial ownership of the property and consider changing the declaration of trust if they want to change their respective shares. Consider these words from Carlton [2002]:

‘I ask in despair how often this court has to remind conveyancers that they would save their clients a great deal of later difficulty if only they would sit the purchasers down, explain the difference between a joint tenancy and a tenancy in common, ascertain what they want and then expressly declare in a conveyance or transfer how the beneficial interest is to be held because that will be conclusive and save all arguments. When are conveyancers going to do this as a matter of invariable standard practice? This court has urged this time after time. Perhaps conveyancers do not read the law reports. I will try one more time: ALWAYS TRY TO AGREE ON AND THEN RECORD HOW THE BENEFICIAL INTEREST IS TO BE HELD. It is not very difficult to do.’

See article in [2007] 190 Property Law Journal 22. © Practical Lawyer