Form 17 Joint tenancy v tenants in common

Form 17 Joint tenancy v tenants in common

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Form 17 itself states it cannot be used for

"property held as beneficial joint tenants where you are both jointly entitled to the whole of the property and income"

and the comments at http://www.hmrc.gov.uk/manuals/tsemmanual/tsem9850.htm also seem to bear this out.

Therefore, in your typical husband and wife jointly owned property scenario (and I believe joint ownership is most common), the first step to effect a split other than 50/50 for a house is to have a solicitor change the ownership to 'tenants in common' and then draw up a declaration of trust for the desired ratio.

Is the above correct?

Replies (7)

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Portia profile image
By Portia Nina Levin
24th Nov 2014 14:14

Yes and no

Form 17 can only be used where property (in the wider sense than just real property) is held in joint names and the beneficial ownership is other than 50:50.

If the beneficial ownership is other than 50:50, then the property  is not be held, as a matter of law, as joint tenants. The fact that the non-50:50 ownership may be undocumented is irrelevant.

Completion of form 17 is one way in which it might be documented.

Nobody bats an eyelid when filing Form 17 in relation to joint bank accounts, but guess what! Joint bank accounts are held as joint tenants!

It is simply the case that ANY trust relating to land has to be documented in writing in order to be effective.

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By geroge
24th Nov 2014 14:51

Thanks Portia, so, putting it another way, legally speaking you cannot have beneficial ownership other than 50/50 for 'joint ownership' (and hence form 17 cannot be used for joint ownership).

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Portia profile image
By Portia Nina Levin
24th Nov 2014 15:08

You could put it that way

But put another way, to use form 17 you have to change the beneficial ownership to tenants in common, which you do automatically  if you declare that your beneficial interests are other than 50:50. :)

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By geroge
24th Nov 2014 15:30

Thanks, that's an interesting legal insight!

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By King_Maker
24th Nov 2014 16:52

"It is simply the case that

"It is simply the case that ANY trust relating to land has to be documented in writing in order to be effective." - PNL

Not so -  section 53(2) LPA 1925 removes the "in writing" qualification for resulting, implied or constructive trusts.

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Portia profile image
By Portia Nina Levin
24th Nov 2014 17:10

Yes

That is what I said, but did not write down.

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By tonycourt
24th Nov 2014 18:01

Joint but equitable

@ Portia

Interestingly it was only around three years ago that HMRC accepted forms17 for bank accounts because, as you say, they considered beneficial ownership of the money in the account to fall equally to each holder, e.g. 50/50 in the case a two person account.

However, HMRC changed their mind because as has always been the case (as far as I'm aware) money in a bank account belongs to each joint owner in proportion to the amounts each contributes to the balance. Thus the interest is similarly attributable.

 

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