Failing to Advise on Joint vs Common Property Ownership

October 11, 2025

Claims Against Solicitors for Failing to Advise on Joint vs Common Property Ownership

When two or more people purchase a property, their solicitor must advise them on whether to hold it as joint tenants or tenants in common. This choice has significant legal and financial consequences. If the solicitor fails to provide clear advice or record the decision correctly, the affected party may have grounds for a professional negligence claim. This article sets out the duties of conveyancing solicitors, common breaches, and how clients can pursue compensation for loss arising from negligent co-ownership advice.

Buying a home with another person is a significant transaction that requires careful legal guidance. One critical issue in England and Wales is deciding whether the co-owners will hold the property as joint tenants or as tenants in common. This choice carries substantial legal consequences, affecting what happens to each owner’s share upon death or if the relationship between owners breaks down. A competent conveyancing solicitor is expected to explain these options and their implications clearly. Unfortunately, some practitioners fall short of this standard, giving rise to potential professional negligence claims.

This article provides a formal analysis of the duties solicitors owe in advising on co-ownership, the common breaches of those duties (including failures to advise on joint vs common ownership), and the legal remedies available to clients or affected third parties. The discussion references the SRA Code of Conduct (now the 2019 Standards and Regulations, replacing the 2011 Code), the Law Society’s Conveyancing Handbook, established case law (such as Ross v Caunters [1980] Ch 297, White v Jones [1995] 2 AC 207, and Carr-Glynn v Frearsons [1999] Ch 326), and general principles of professional negligence.

Joint Tenancy vs. Tenancy in Common: Legal Distinctions

Under a joint tenancy, all co-owners together are regarded as a single owner of the whole property. They have equal, undivided shares regardless of each person’s financial contribution. A defining feature of joint tenancy is the right of survivorship: if one joint tenant dies, their interest passes automatically to the surviving co-owner(s), outside of any will. A joint tenant cannot leave their share to someone else in a will because legally their share never becomes part of their estate – it passes directly to the other owner(s). This arrangement is common for spouses or partners who want the property to pass outright to the other upon death.

By contrast, under a tenancy in common, each co-owner holds a distinct share in the property, which can be equal or unequal. There is no survivorship; if one tenant in common dies, their share passes according to their will or the intestacy rules, rather than automatically to the co-owner. Tenants in common can thus leave their individual share to third parties. This form often suits situations where co-owners have contributed unequally or wish to leave their interest to someone other than the co-owner (for example, to children from a previous relationship). For instance, one tenant in common might own 75% of the property and the other 25%, reflecting an unequal deposit, and each can sell, mortgage, or bequeath their own share independently. In summary, joint tenants collectively own the whole property as one unit (with survivorship), whereas tenants in common each own a defined portion (with the freedom to dispose of their share by will).

Why the Form of Co-Ownership Matters

Choosing the wrong form of co-ownership – or not understanding the choice – can lead to serious unintended consequences. Several common scenarios illustrate the importance of this decision:

• Unequal Contributions and Relationship Breakdown: If a couple purchases a home and one partner contributes significantly more (e.g. a larger deposit) but they hold as joint tenants, the law presumes each owns an equal share. In the event of a separation and sale, the proceeds will typically be split 50/50 regardless of the unequal contributions, absent a specific agreement to the contrary. For example, a couple who buy as joint tenants with one paying a much larger deposit would still each take half the equity on sale. Without proper advice, the higher-contributing party may not realise they should have been tenants in common (with shares proportional to contribution, possibly secured by a trust deed) to protect their interest. Failing to structure the ownership correctly at the outset can cause one party significant financial loss after a breakup.
• Death, Wills, and Disinherited Heirs: The co-ownership form determines who inherits a deceased owner’s share. If co-owners hold as joint tenants, the survivor automatically inherits the entire property, which can defeat the deceased’s intentions under a will. Suppose a widowed father remarries and buys a house with his new wife as joint tenants. In his will, he leaves the house between his daughter from the first marriage and his new wife. However, because of the joint tenancy, when he dies the house passes entirely to the surviving wife, and the daughter receives nothing. The will is effectively bypassed. To carry out his wishes, the father would have needed to hold as tenants in common so that his 50% share could pass under the will to his daughter. Joint tenancy in this scenario frustrates the estate plan, potentially disinheriting intended beneficiaries.
• Financial Planning and Protection of Shares: Tenancy in common offers co-owners flexibility to manage their shares for asset planning. Each owner can, in principle, deal with their portion – for example, by mortgaging or selling their share, or transferring it into a trust for tax or estate planning purposes – without needing the other’s consent (though in practice such actions may be constrained by trust and property law). Joint tenants must act together as a single owner, which may not be suitable for certain arrangements (such as investment properties co-owned by business partners or siblings). Tenancy in common permits bespoke arrangements and future changes, whereas joint tenancy is more rigid.

A seemingly simple checkbox choice on a Land Registry transfer form can thus have far-reaching effects. If a solicitor does not clearly explain these stakes and options, clients may unwittingly make choices that lead to significant financial loss or family hardship down the line.

Solicitors’ Duty to Advise on Co-Ownership

Conveyancing solicitors have a clear legal and professional duty to advise clients about the choice between joint tenancy and tenancy in common when two or more people purchase property together. This is not a mere formality; it is viewed as a crucial part of a solicitor’s responsibilities in any joint purchase. The expected standard of care is that of a reasonably competent conveyancing solicitor. In practice, fulfilling this duty means the solicitor should do all of the following for the clients:

• Explain the options in understandable terms: The solicitor must clearly outline the two methods of co-ownership in plain language appropriate to the particular clients. Technical jargon should be avoided or carefully explained. Even the terms “joint tenants” and “tenants in common” can be confusing, so the solicitor should ensure the clients genuinely grasp what each arrangement means in practical terms. This often requires a face-to-face (or at least telephone) discussion, not merely handing out a leaflet.
• Recommend the suitable form for the clients’ situation: The solicitor should not remain passive or neutral if one option is clearly more appropriate for the clients’ circumstances. After learning about the clients’ intentions and situation, the solicitor is expected to actively advise which form of co-ownership best protects those intentions. For example, the solicitor should ask whether the buyers are contributing equally or unequally, and what they intend to happen with each share on death. Based on the answers, the solicitor should guide the clients toward the optimal choice. If one client is contributing a much larger share of the purchase price or has children from a prior relationship, it will often be advisable to choose tenants in common (with defined shares or a trust deed) rather than a joint tenancy. In short, solicitors are expected to exercise professional judgment and give tailored advice, rather than simply asking the clients to tick a box.
• Consider potential conflicts and independent advice: If the co-owners’ interests are not fully aligned – for instance, one party is putting in most of the funds or there is an imbalance in bargaining power – the solicitor must be alert to a possible conflict of interest. A single solicitor can usually act for all buyers in a routine purchase, but they must ensure that each client’s position is protected. In cases of a significant imbalance or diverging interests, the solicitor should at least advise the parties of the situation and, in extreme cases, may need to recommend one party seek independent legal advice. The overriding goal is that each co-owner makes an informed choice with a full understanding of their rights, even if they are jointly represented.
• Document and implement the clients’ decision properly: Once the clients reach a decision on how to hold the property, the solicitor must ensure it is correctly recorded and effected. If the clients choose to hold as tenants in common – especially in unequal shares – the solicitor should draw up or recommend a Declaration of Trust specifying each person’s share or any special arrangements agreed, such as what happens if one party wants to sell. The solicitor must also ensure that the appropriate restriction is entered on the title register (the Land Registry Form A restriction) to reflect the tenancy in common. This step is essential to prevent one co-owner from dealing with the property without the other’s consent, and it serves as an official flag that the property is held in common. Under the Land Registration Act 2002, a Form A restriction is the mechanism by which a tenancy in common is noted on the register, alerting third parties that no disposition by a sole proprietor is to be registered without a court order. If the clients initially choose a joint tenancy, the solicitor should advise that they retain the option to sever it later if circumstances change (for example, if, at a later stage, an owner wishes to leave their share by will, the joint tenancy would need to be severed at that time). In summary, the solicitor’s duty is not discharged by merely having the clients sign a standard form – the solicitor must ensure the choice is carried out correctly and that the file reflects the clients’ informed decision.
• Comply with professional rules and guidance: These duties are reinforced by regulatory and industry standards. The Solicitors Regulation Authority (SRA) Code of Conduct requires solicitors to provide a proper standard of service to clients and to ensure that clients have the information needed to make informed decisions about their matter. Under the current SRA Standards and Regulations 2019, for example, Rule 3.4 mandates that a solicitor “considers and takes account of [the] client’s attributes, needs and circumstances”, and the Code obliges solicitors to give information in a way clients can understand so that they are in a position to make informed choices about how their matter is handled. Similarly, Law Society guidance emphasizes that sending a form or leaflet alone is insufficient – the solicitor must verify that the client truly understands the co-ownership options and their consequences. Adherence to these standards is not only good practice but also serves as a benchmark in evaluating a solicitor’s conduct if a negligence claim arises.

Breach of Duty: Common Failures in Advising Co-Owners

Not all practitioners meet the above standards. The following are frequent failures by solicitors in co-ownership scenarios that can amount to a breach of duty (and thus professional negligence) if they result in harm:

• Failing to explain the difference properly: In some cases, the solicitor gives no real explanation of joint tenancy versus tenancy in common, or provides only a cursory, jargon-filled note that clients do not truly understand. The clients might simply be handed a form to choose one option without any discussion of why it matters. Such an approach falls below acceptable standards. A reasonably competent solicitor would ensure the client understands why the choice is important – for instance, affecting inheritance and shares of the property. If clients were not told in clear terms about the implications of each form of ownership, that is likely a breach of the solicitor’s duty of care.
• Not inquiring into the clients’ intentions (unequal contributions or inheritance plans): A diligent conveyancer will ask about the buyers’ situation – for example, who is contributing how much to the purchase price or deposit, and what the co-owners want to happen to the property if one of them dies. If a solicitor simply defaults to joint tenancy without asking whether the clients intend unequal shares or have specific inheritance wishes, that is a serious oversight. For instance, if one buyer was providing most of the deposit or purchase funds and the solicitor did nothing to account for that (such as suggesting tenants in common with defined shares or a trust deed), the solicitor’s performance likely fell below the expected standard. Likewise, failing to ask “Do you want your share to pass to the other owner or to someone else upon death?” can lead to an inappropriate ownership form being selected. Ignoring these basic client intentions is a breach of the duty to provide tailored advice.
• Incorrectly implementing the chosen arrangement: Even when clients do elect a tenancy in common, mistakes in the paperwork can undermine that choice. A common error is neglecting to register the Form A restriction on the title – if the solicitor forgets to enter this restriction at the Land Registry or fails to draft the promised Declaration of Trust, the property may remain effectively as a joint tenancy in the records despite the clients’ wishes. Such clerical or administrative errors can have serious consequences. For example, clients might believe they are tenants in common, but because the restriction was never registered, one owner could potentially sell or mortgage the property as if it were still held jointly (since there would be no formal notice of the co-owner’s interest). Failing to carry out the clients’ instructions in this manner is clearly negligent. A reasonably competent solicitor should also double-check that the transfer deed (Form TR1) correctly reflects the chosen ownership form and that any ancillary documents are completed.
• Neglecting to advise on future changes (severance of joint tenancy): The duty to advise on co-ownership does not necessarily end at the completion of the house purchase. If a solicitor continues to act for the clients on related matters (for example, drafting a will for one of the co-owners or handling later transactions), they should consider whether circumstances call for revisiting the ownership structure. A classic scenario is when a joint tenant makes a will leaving their interest in the property to someone other than the co-owner. A competent solicitor in that situation will check how the property is held and, if it is a joint tenancy, advise the client to sever it (convert to a tenancy in common) so that the will can take effect. If a will-writing solicitor fails to raise this, the gift in the will is defeated by survivorship, leaving the intended beneficiary with nothing. In such cases, the disappointed beneficiary might have a negligence claim not only against the will-drafting solicitor but even against the original conveyancing solicitor if the initial joint tenancy setup was done without proper advice. English law, following the principles from White v Jones and related cases, recognises that third parties who lose out due to a solicitor’s failure can sometimes pursue a claim despite not being the solicitor’s direct client.
• Inadequate documentation of advice: In any professional negligence dispute, a critical question is: what advice was actually given, and is there evidence of it? A common failing is when solicitors rely on a signed form or a standard brochure as proof that advice was provided, without documentation of any explanatory dialogue. If the client genuinely was not made aware of the implications of the choice, the mere fact that a box was ticked on a form is not a defence. Courts will examine what a reasonably competent solicitor should have done in the circumstances. If all the solicitor did was embed a brief explanation in small print or failed to follow up when a client left the co-ownership question blank, that will likely be deemed insufficient and below the standard of care. Even sending an information leaflet without personal discussion can be inadequate on its own. Proper practice is to make a file note of the conversation where the options were explained and the clients’ decision was confirmed. A lack of such record-keeping, while not negligence in itself, can severely undermine the solicitor’s position in litigation – if the client’s recollection is that no advice was given, and the solicitor has no evidence to the contrary besides a pro forma document, the court may find that the duty to advise was breached.

Each of the above failures represents a breach of the duty to exercise reasonable care and skill. The SRA Code of Conduct 2011, applicable to solicitors at the time of many such transactions, explicitly required that clients be put in a position to make informed decisions about how their matter is handled. Merely going through the motions without ensuring genuine understanding falls short of this professional obligation. Authoritative sources like the Law Society’s Conveyancing Handbook reinforce that the onus is on the solicitor to do more than hand over a form – the solicitor must actively engage with the client on the issue. When they fail to do so, and loss ensues, the groundwork for a negligence claim is laid.

Solicitor Negligence in Advising on Joint vs Common Property Ownership

Duty of Care: Solicitors owe a duty of care to clients to exercise reasonable skill when advising on co-ownership (joint tenancy versus tenancy in common). In Carr-Glynn v Frearsons (1998), the Court of Appeal held that advising on severance of a joint tenancy (to ensure a will gift is effective) is part of this duty.

Breach of Duty: Breach occurs if the solicitor’s advice or actions fall below the standard of a reasonably competent practitioner. Failing to explain co-ownership options or to implement a needed severance can breach this standard. In Carr-Glynn, not advising immediate severance (so a will gift was defeated by survivorship) was negligent, having “fallen below the standard of care”.

Causation and Loss: To succeed, the claimant must prove that, but for the solicitor’s negligence, the outcome would have been different. The loss is usually the value of an inheritance or property share lost due to the error. In Shah v Forsters (2017), a claim failed on causation because the court was not convinced the client would have severed the joint tenancy even with proper advice.

Third-Party Beneficiaries: In will-making cases, third parties (intended beneficiaries) may also sue the solicitor. Ross v Caunters (1980) and White v Jones (1995) established that a solicitor’s duty extends to intended will beneficiaries. Under this principle, a disappointed beneficiary can recover the inheritance lost due to negligent advice, even without a direct client relationship.

Consequences for the Solicitor: If a negligence claim succeeds, the solicitor (or more practically their insurer) will be liable to pay damages to the claimant. The measure of damages is financial compensation to put the claimant in the position they would be in had the breach not occurred. In co-ownership cases, this typically means compensating the loss of equity or inheritance. Courts have indeed recognised and allowed substantial awards in claims of this nature. Beyond damages, a solicitor found negligent may suffer reputational harm and could face regulatory action by the SRA if the failing is serious or systemic (breaching Principles or Codes). However, the focus of this article is on civil liability to the injured client or beneficiary.

Claimant’s Rights and Next Steps

For clients (or affected beneficiaries) who believe they have suffered loss because a solicitor failed to properly advise on joint tenancy versus tenancy in common, there are clear rights and remedial steps available. Below are practical considerations for those contemplating a professional negligence claim:

• Gather Documentation: Collect all relevant paperwork from the property transaction and any subsequent dealings. Key documents include the transfer deed (Form TR1), any co-ownership instruction forms or letters, the solicitor’s client care letter and any written advice given about joint versus common ownership, and any evidence of your stated intentions (for example, emails discussing unequal contributions or estate plans). If a will or trust deed was later made (or should have been made), gather those as well. These documents will help establish what advice was (or was not) given and what ownership arrangements were put in place.
• Record Your Recollections: While events are fresh in mind (or upon later discovery of the issue), write down your own recollection of what the solicitor told you – or failed to tell you – about the ownership options. Note whether the solicitor explained the concepts clearly or merely handed you a form. Did they ask about your respective contributions or what you wanted to happen on death? Were you aware at the time that holding as tenants in common was even an option? Your personal recollections can serve as important evidence alongside the written file. If there were witnesses to any discussions (perhaps a family member present at a meeting), their recollections might also be useful.
• Act Promptly (Limitation Deadlines): Do not delay in seeking advice. Professional negligence claims are subject to strict limitation periods. In England and Wales, the general time limit to sue in negligence is six years from the date of the negligent act or omission. If the problem only becomes apparent later (which is common – for example, one only discovers the issue when a co-owner dies or when trying to sell or refinance the property), the law may extend the time limit: you have up to three years from the date you first had knowledge of the material facts giving rise to the claim. However, there is an absolute long-stop deadline of 15 years from the date of the negligence, after which no claim can be brought regardless of late discovery. It is crucial to seek legal advice as soon as the issue comes to light, because missing a limitation deadline can bar the claim entirely.
• Mitigate Loss and Seek Resolution: If a co-owner is still alive or the property is still held, steps might be taken to mitigate the situation (for example, severing the joint tenancy now, or reaching a settlement among the interested parties). However, such steps may not fully cure past loss (e.g. an inheritance already lost). A formal legal claim may be needed to recover financial losses. Consider first using any available complaints process (such as the firm’s internal complaints procedure or the Legal Ombudsman), but be mindful that these do not extend the court limitation period. If the loss is substantial, consulting a solicitor who specialises in professional negligence is advisable to assess the merits of a claim and to pursue it efficiently.

Where co-owners are already in dispute over beneficial interests or property ownership following a solicitor’s failure to advise on joint tenancy or tenancy in common, the issues may overlap with equitable ownership law. For an explanation of how the courts resolve such disputes between cohabiting owners, see our guide to cohabitation property disputes and constructive trusts.

In summary, solicitors have a well-established duty to advise on joint versus common property ownership, and failures in this regard can give rise to liability both to clients and, in some cases, to third-party beneficiaries. The law provides remedies to undo or compensate for the harm caused, reinforcing the importance of solicitors taking this aspect of conveyancing advice seriously. By understanding their rights and acting promptly, those who have been adversely affected by such a failure can seek to rectify the situation and obtain the compensation they deserve.

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Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Carruthers Law accepts no responsibility for any reliance placed on the contents. This article may include material from court judgments and contains public sector information licensed under the Open Justice Licence v1.0.