Can a Surviving Tenant in Common Sell the Property?
Estimated reading time 6 minutes
Losing a co-owner of a property is never easy. Alongside the emotional impact, there are often legal and financial matters to deal with, including what happens to the property itself.
Can a surviving tenant in common sell the property? Usually, no. The deceased owner's share passes to their estate and doesn't transfer automatically to the surviving owner. Once probate is complete, the beneficiaries who inherit that share generally need to agree to any sale.
This blog provides guidance on tenants in common selling house rules, explaining what happens to tenants in common when one dies, whether the surviving owner can sell the property, and what to do if complications arise.
What is a tenant in common?
When two or more people own a property as tenants in common, each person owns a separate share. These shares don't have to be equal. For example, one owner may hold a 75% share while another owns 25%, depending on what each person put in when the property was bought.
Unlike joint tenants, tenants in common don't benefit from the right of survivorship. This means that if one owner dies, their share doesn't automatically pass to the surviving owner, and instead, it forms part of their estate and passes on according to their will, or under the rules of intestacy if there's no will.
This is one of the biggest differences between joint tenants and tenants in common, and it has a real impact when it comes to selling.
Can a surviving tenant in common sell their property on their own?
The surviving owner still owns their share but they usually can't sell the entire property without agreement from whoever inherits the deceased owner's share. Once probate is complete, those beneficiaries become co-owners.
For tenants in common selling house after death, the whole property generally needs everyone with a legal interest to agree, but there are some exceptions depending on the ownership arrangements and whether executors or trustees are involved.
What happens when one of the tenants in common dies?
What happens when a tenant in common dies? There are several legal steps that usually happen before the property can be sold:
- The deceased owner's share becomes part of their estate.
- Probate may be required before their share can be transferred.
- The executor administers the estate according to the will.
- If there's no will, the share passes under the intestacy rules.
- The beneficiary becomes entitled to that ownership share.
- Only once ownership is properly established can decisions about selling be made.
This is why tenants in common selling a house after death can take longer than expected, especially if probate is delayed or beneficiaries disagree.
Each tenant in common owns a distinct share, so in theory an owner can sell just their own share without selling the whole property. However, this is more difficult in practice.
Few buyers want to buy a percentage of a house where someone else still lives in the rest of it. Finding a willing buyer can be hard, and the share is often worth much less than its true value.
For most owners, selling the whole property is simpler and better financially.
Trusts of Land and Appointment of Trustees Act 1996
Disagreements aren't uncommon after a death. The surviving owner may want to sell, while the beneficiaries who inherit the deceased's share may want to keep the property, rent it out, or continue living there.
If everyone can't agree, mediation or negotiation can help. If that fails, either side can apply to the court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale.
Under section 15 of TOLATA, the court will weigh up several factors, including:
- The intentions of the original owners.
- The purpose for which the property is held.
- The interests of any children living there.
- The interests of secured lenders.
- The wishes of all beneficiaries.
Court proceedings should always be a last resort - they cost time and money.
Can you sell a property before probate is granted?
In most cases, no, not to completion. The property can be marketed and even put under offer while probate is underway, but the sale can't usually complete until the Grant of Probate has been issued, since the executor has no legal authority to transfer ownership until then.
According to the UK Government’s guidance on wills, probate and inheritance, contracts can often be exchanged during probate, but completion has to wait for the Grant, which can cause delays, particularly for complex estates or slow paperwork.
What happens if there is a mortgage?
A mortgage adds another layer when selling a house as tenants in common.
The mortgage doesn't disappear when one owner dies and the lender still expects repayments. If the surviving owner stays on the mortgage, they'll usually need to keep paying while the estate is administered. The executor should notify the lender as soon as possible after the death.
When the property sells, the outstanding mortgage is normally repaid from the proceeds first, before the remaining funds are split between the owners according to their shares.
Can the surviving owner stay in the property?
Yes, the surviving owner can often stay in the property. Owning as tenants in common doesn't automatically mean the surviving owner has to move out.
It can get more complicated if the beneficiaries who inherit the deceased's share want to cash in their inheritance by selling.
Where everyone agrees, the surviving owner can sometimes buy out the beneficiaries' shares instead of selling the whole property. This lets them stay in the home while the beneficiaries still get the value they're owed.
How long does selling a house as tenants in common take?
Because tenants in common own separate shares, those shares pass through the deceased's estate rather than transferring automatically. Probate, beneficiaries and legal ownership all play a part before a sale can go ahead, and each step can take time.
The overall timeframe depends on several factors, including:
- Whether probate is required.
- How quickly the estate is administered.
- Whether all owners agree to sell.
- The property's marketability.
- Any mortgage or legal complications.
If everyone cooperates and probate runs smoothly, the process can be fairly straightforward. Disputes or probate delays can extend it considerably.
Sell your joint property quickly after death
So, can a surviving tenant in common sell the property? In most cases, not without the people who inherit the deceased owner's share.
For many families, holding onto a jointly owned property after a bereavement isn't practical. When selling a house as tenants in common, mortgage payments, insurance, maintenance and council tax can quickly become a burden while waiting for a traditional sale to complete.
If everyone with an interest in the property agrees to sell, a faster route can reduce uncertainty and help settle the estate sooner. If you're looking to sell your house fast and you'd rather avoid a drawn-out sale while everyone gets on the same page, Bettermove can help. We offer a straightforward solution that avoids many of the delays of the traditional estate agent route and can work if you want to sell an inherited property, where several beneficiaries just want a clean, quick resolution.
