Property Law Essex

What is a declaration of trust?

A declaration of trust is a document that records and sets out who are the beneficial owners and the percentage each party owns holds in the property on trust. A declaration of trust also clarifies what will happen in the event that the property has to be sold. However,  it can be even more important to have a declaration of trust  drawn up even when somebody has contributed towards the property but is not named on the title deeds, to protect their interest A declaration of trust (also known as a deed of trust) is a legally binding document and enforceable in court.

How does it work?

Purchasing a property is expensive and it is not just the initial deposit. If you are buying jointly with a partner or a friend, it is likely that the costs may not be split equally. In addition, if you are buying the property on your own, you may require financial contributions from family and friends. As these financial contributions add up to a considerable amount of money, it is advised to draw up and sign a document which protects everyone’s interests.

In the future, if the property is sold for example, it ensures that all parties with interest in the property gets that they are entitled to.

A declaration of trust is beneficial because…

1. If you are unmarried, the legal protection that married couples have does not apply if you separate. Without a declaration of trust or cohabitation agreement, unmarried couples have different rights to married couples.
2. It protects everyone’s interests in the property. It is also helpful when one party’s name isn’t registered on the mortgage. One party may contribute to the mortgage repayments and monthly bills however, informally. This means that the individual may have a beneficial interest in the property and will need protecting.
3. It reduces the risks of misunderstandings and disagreements in the future. You may have verbally agreed with your partner that you will receive more of the equity when/if the property is sold however, without a legally-binding written agreement, you leave yourself vulnerable in the event that your relationship breaks down and your partner changes their mind.

What should be included?

1. How much each party has contributed to the deposit
2. How the mortgage is to be paid off and how much each party is to contribute towards the repayments and other financial outgoings
3. What percentage of the property each party will own
4. How the sale proceeds should be split
5. An agreed method of valuing the property

Can you change or challenge a declaration of trust?

First and foremost, a declaration of trust is put in place to ensure that no one can change their mind about how the sale proceeds are split when the property is sold. But of course, situations change and the document may need updating.

The deed can be re-written to reflect changes in circumstances however, it needs the consent of all parties.

If you want to make substantial changes to the declaration, it is often advised to get a new one written. If alterations are only minor, you can enter a deed of variation.

Deed of Variation

A deed of variation refers to the declaration that is already in place and adds the new clauses.

You may want to make alterations to your deed of trust if:

1. a) you have made improvements to your home and this has increased the value of the property and/or;
2. b) if there has been a change in ownership (e.g. if someone is bought out of the property).