Declarations of Trust: What are they and when should you be making them

On behalf of Attwaters Jameson Hill posted in Trusts & Probate on Monday, July 31st, 2017

Declarations of Trust are legally binding documents that are used to set out the interests of parties where property is owned by more than one person. A Declaration of Trust can for example be entered into by couples purchasing their first home, when a partner moves into an existing home, or when property is bought as an investment. The parties can declare their interests in proportions agreed by them.

A Declaration of Trust for real property declares the beneficial ownership regardless of how the property is held at the HM Land Registry. It can allow for more specific details as to how the shares of the property are split between parties than the Land Registry Title register can and can also allow an owner not protected by such registration to be protected. A Declaration of Trust however can be referred to on the Title register, signalling its existence to third parties, providing an extra layer of protection.

A Declaration of Trust should be considered whenever a property has been purchased in unequal shares by the parties. For example, if Person A has contributed 75% of the asking price on a property, the parties may want to agree that Person A will get their higher contribution back before the division of the sale proceeds, or even receiving 75% of the total net proceeds, therefore benefitting from any uplift in the value of the property. Similarly, if you are a parent and are about to help your child buy their first property with a partner or a friend, you may wish to enter a Declaration of Trust to enable your contribution to revert to yourself, or to your child.

If your partner is moving into a property that you own yourself, a Declaration of Trust should also be considered. The Declaration of Trust would be able to regulate contributions to any existing mortgage and the general upkeep of the house. The Declaration of Trust will also evidence your entitlement to the sale proceeds, referring to your contribution to the purchase of the property. Finally, the Declaration of Trust can stipulate where your share will pass upon your death, should you wish it to pass to your children or pass to your partner as your survivor.

It is also important to consider preparing a Declaration of Trust in the case of rental properties. Not only can a Declaration of Trust outline parties’ individual contribution and their shares of the sale proceeds, but the Declaration can also indicate individual responsibilities. For example, if a rented property becomes vacant for a time, who will be liable for the council tax and paying the utility bills.

We work closely with our Property and Family teams so that a Declaration of Trust can be drafted to coincide with a property purchase completing, or a Consent Order.

If you feel that a Declaration of Trust will be helpful in regard to your property, please contact Sophie Weavers, our Trusts Paralegal today on 0203 871 9252.

 

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