Buying a property in joint names – should I have a declaration of trust?

Man filling out documents

For parties contributing to the purchase in unequal shares, you can protect your interest by instructing a solicitor to draw up a declaration of trust. This ensures that the sale proceeds are split in accordance with the level of contributions made to the equity in the property.

The declaration of trust is a legally binding document and therefore the terms must be honoured. It can be registered at the Land Registry for a cost of £40. This will alert any lawyer on sale that there is a declaration of trust in existence and they should make enquiries in relation to the same.

In the event of sale of the property, the solicitor acting would obtain a copy of the declaration of trust to ascertain how the monies are to be distributed.

A declaration of trust can be useful if for example, one purchaser’s parents are gifting the deposit to a couple purchasing a property. They can ensure that, in the event of a split, the parents would receive their contribution back prior to the sale proceeds being split.

Owners who will be paying unequally to the mortgage find declarations of trust useful also. This can then be reflected in the event of sale. You should note however that the liability in respect of a mortgage is joint and severable which means that if one party defaults under the terms of the declaration of trust and fails to keep up their part of the payment, the mortgage lender is within their rights and will usually seek full payment from the non-defaulting party.

We usually advise that parties entering into a declaration of trust should also enter into a will at the same time to govern the position on the death of one or other of the parties.

For further information regarding declarations of trust, conveyancing in general or wills and probate please contact one of our expert lawyers who will be happy to assist.

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