Can a Surviving Tenant in Common Sell the Property?

It’s not always obvious what happens to a property when one of the co-owners dies. If you owned a home as tenants in common, and the other person has passed away, you might now be wondering what rights you have. Can a surviving tenant in common sell the property? Or are there other steps you’ll need to take first?

Here’s what you need to know about how the legal process works, how quickly you can move forward and what your options are if you want to sell.

What does ‘tenant in common’ actually mean?

Owning a home as tenants in common means that each owner has a defined share of the property. This is usually set out in a declaration of trust or agreement. The shares don’t have to be equal. One person could own 60%, the other 40%, for example.

It’s a popular setup for friends or relatives who buy together, couples who want to protect unequal deposits or anyone who wants to keep their ownership share separate for tax or inheritance reasons.

Unlike joint tenants, where the property automatically passes to the other owner when someone dies, tenants in common keep separate legal rights. This means their share of the home forms part of their estate when they die.

So what happens when one tenant in common dies?

When a tenant in common passes away, their share of the property does not automatically go to the surviving owner. Instead, it passes according to their will. If they didn’t leave a will, then it’ll fall under the rules of intestacy.

This means a third party could become the new co-owner. That might be a family member, a child or an executor acting on behalf of the estate. Either way, the surviving tenant in common won’t have full control of the property unless they also inherit the other share.

Until probate is granted and the share is legally transferred, you’ll be unable to sell or remortgage the property without the involvement of the estate or new co-owner.

Can a surviving tenant in common sell the property on their own?

The short answer is no, not without the consent of the co-owner or the estate that now holds the other share.

Because each tenant in common owns a separate legal interest, you can only sell your share, not the entire property, unless the other party agrees to the sale. In most cases, that means either:

• Waiting until the deceased’s estate has gone through probate and the share is passed to a beneficiary
• Working with the executor or legal representative to arrange a sale together

Trying to sell the whole property without the other owner’s agreement can lead to legal complications, delays and disputes. The Land Registry won’t allow a full sale without all legal owners signing off on it.

What if the other share is passed to someone uncooperative?

Sometimes, the surviving tenant in common wants to sell the property, but the person who inherits the other share doesn’t. Maybe they want to keep it, rent it out or wait for the market to improve. This can create a deadlock.

In these cases, you still have a few options:

• You can try to sell your share to a third party, although this is rare and often difficult unless the buyer has a clear use in mind
• You can apply to the court for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)

This is a legal route where a judge can decide whether the property should be sold and how the proceeds are divided. It’s not a quick fix, and it does come with legal costs, but it can be useful in situations where no agreement can be reached.

What if you inherited the other share?

If you’re the surviving tenant in common and you’ve inherited the other person’s share through their will, you’ll have full ownership, but not immediately.

First, the estate needs to go through probate. This legal process confirms the will and gives the executor the authority to deal with the person’s assets. Once probate is granted and the share is transferred to you, you’ll be the sole owner. At that point, you can sell the property in your own name.

Be aware that probate can take months, especially if the estate is complex or there are any disputes. If you need to sell urgently, it may be possible to line up a buyer and prepare documents while probate is in progress, but completion can only happen once probate is granted.

Can you sell your share of the property?

Technically, yes. A tenant in common can sell their share of the property without the other owner’s consent. But in practice, it’s not easy.

Most buyers don’t want to purchase part of a home unless they have a clear arrangement with the other owner. It’s especially tricky if the property is being lived in by one of the parties. That’s why partial share sales tend to happen only in investment scenarios or family arrangements.

If you’re struggling to reach agreement with the other party, a full sale is usually the cleaner option, provided everyone involved is willing.

Selling with probate still in progress

If you want to sell the property but probate is still underway for the other owner’s estate, you can still start the process.

You can:

• Get the property valued
• Speak to estate agents or cash buyers
• Instruct a solicitor
• Market the property

But you won’t be able to complete the sale until probate is granted and the legal title is updated.

If time is tight when you’re selling a probate property, a cash house buyer can often help move things forward. They’re used to dealing with probate delays and can prepare documents in advance, so everything’s ready to go once the paperwork is finalised.

Can you sell if the other tenant in common lacked capacity?

If the other owner was still alive but no longer had the mental capacity to make decisions, you wouldn’t be able to sell the property without formal legal authority. This usually means a lasting power of attorney (LPA) or deputyship through the Court of Protection.

In some cases, this can take just as long as probate. So if you’ve inherited a share from someone who lacked capacity, and are now trying to sort out their estate, it’s important to work with a solicitor who understands both mental capacity and probate law.

Selling to a cash buyer: when it makes sense

Once probate is complete and you’ve either inherited the other share or reached agreement with the beneficiary, you can go ahead with the sale. At that point, a cash buyer can help you sell quickly, avoid legal hold-ups and save on agent and legal fees.

Cash buyers can also deal with:

• Shared ownership situations
• Tenanted or vacant properties
• Unmortgageable homes
• Probate-related delays
• Unusual structures or legal titles

If you’re ready to sell but want to avoid months of back and forth, this route gives you speed and certainty.

When you’re ready to sell, we’re ready to help

So, can a surviving tenant in common sell the property? Not by themselves, but that doesn’t mean you’re stuck. You can still move things forward by working with the estate, applying for an order for sale or waiting for probate to give you full legal ownership.

Once you’ve got the right paperwork in place, you’re free to sell. And if you want a quick, chain-free sale with no agents or delays, there’s help available.

Sell House Fast works with people across the UK to sell probate and jointly owned homes quickly and simply. We buy any house for cash, cover legal costs and can complete in just a few days once everything is ready. 

If you’re a surviving tenant in common and need a quick, straightforward sale, enter your postcode now for a free, no-obligation cash offer.