Property Ownership - Legal & Equitable Title
Property Ownership – Legal & Equitable
In England and Wales land can be held by an individual in two different ways. The two different types of ownership are known as the legal title and the beneficial interest.
The legal ownership of land is separate from the beneficial ownership and as such, the legal owner or owners will not necessarily be the same as the beneficial owner or owners.
The legal ownership
The person entitled to the legal title of land is known as the proprietor and is normally registered as such at HM Land Registry. The register records the ownership of the legal estate in the land, not the beneficial interests (although restrictions can be registered at the Land Registry to warn any future purchasers about the existence of another beneficial owner).
When two or more people are registered as proprietors of the land their legal ownership of the land is ‘joint’ as the legal estate cannot be divided.
Unlike the legal estate, the beneficial ownership can be held jointly or otherwise split into equal or unequal shares.
If you are a “joint tenant” of a property you will own the beneficial interest in the land with the co-owners together as a whole. As such if one of the owners were to die, the land would pass automatically to the surviving joint proprietor or proprietors. This is regardless of any wishes set out in a Will.
However, a co-owner of land may not want their interest in the land to pass to the other co-owner or co-owners. If this is the case the land can be held as tenants in common. Each individual will then own a “share” of the land. Their share can then be sold, pass under the intestacy rules or otherwise pass to the beneficiaries under a will.
If land needs to be sold following the death of a proprietor, who was a tenant in common, any sole proprietor would need to appoint a second trustee in order to sell the property. The beneficial interest in the deceased’s share of the land would then attach to the proceeds of sale. Any purchaser can then take the property free from any interest held by the deceased’s estate.
Property held on trust
A trust in land is the relationship between the legal owner/s and the beneficial interest in the land. The owners of the legal title can either hold it on trust for themselves in equal or unequal shares or on trust for a third party or parties.
If the owners of the legal title hold the land on trust for a third party they will not be entitled to the equity and must hold the equity for the persons entitled to it in accordance with the terms of the trust instrument. In this instance the owners of the legal title are holding the land as trustees for the beneficiaries of the trust.
How to protect beneficial interests?
The Land Registration Act 2002 provides that a restriction can be entered in the register by anybody who has a sufficient interest in it. Thus safeguarding the interests of the beneficiaries of the land and, in some instances, limiting the trustees’ power when dealing with the land. The duty of applying for any necessary restrictions falls on the trustees, though a beneficiary under a trust may also apply for one to be entered.
Should you require further advice on this matter or any other property or trust related matters, please contact our expert team of conveyancing and private client solicitors who will be more than happy to help.