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If you have an interest in a property but your name is not on the title deeds, a declaration of trust can offer protection. We look at how  declarations of trust work and what provisions you can include to ensure you do not lose any contributions you have made.

It is sometimes the case that individuals contribute towards a property but do not necessarily have their name on the title deeds. This can cause problems if the property is sold or if they wish to realise their share.

When is a declaration of trust needed?

Examples of when an interest in property might arise without an individual’s name being on the title include:

• When an individual moves in with someone, then helps to pay the mortgage, pays the bills so that the other party can pay the mortgage or pays for substantial property improvements
• When a parent provides money to help their child purchase their home
• When a couple buy a property and contribute different amounts

Putting a declaration of trust in place will mean that the financial interest of the person who has made the contributions is documented, so that they can be sure of recovering the money in the future, for example, when the property is sold.

What is a declaration of trust?

A declaration of trust is a legally binding statement or deed that sets out who has a beneficial interest in a property and what each person’s share is.

Owning a property as tenants in common

If you are buying a property jointly with someone else, you can own it in two different ways:

• Joint tenants; or
• Tenants in common

Owning a property as joint tenants means that neither of you holds a specific share. When the property is sold, you would usually divide the sale proceeds equally between you. Should one of you die, the other would automatically own the whole property.

If you own a property as tenants in common then each of you will own a specified share. For example, you could own three-quarters while the other owner owns one-quarter. Ideally, this arrangement will be set out in writing in a declaration of trust or a more detailed deed of trust.

You will be entitled to this share of the sale proceeds if you decide to sell. Should one of you die, then their share of the property will pass under the terms of their Will or, if they have not got a Will, under the rules of intestacy. This means that the other owner will not automatically own the whole property, so it is crucial to put a Will in place leaving it to them if you want this to happen.

Protecting individuals who are not named on the title deeds

A declaration of trust can also be used to document the interest of someone whose name is not on the title deeds. This could be someone who was not eligible for the mortgage, so who is not a joint legal owner, or a parent who has contributed towards the purchase.

A property solicitor can draft a deed of trust that protect their investment. The document can include the following:

• The amount that has been contributed
• The share each party owns
• How mortgage payments and other outgoings will be dealt with
• How a property valuation will be agreed upon
• How sale proceeds will be shared

The document can be tailored to your exact circumstances. For example, if one person paid the deposit, but the other joint owner is paying most of the mortgage, then over time the share of the person paying the mortgage can be set to increase.

Before entering into a declaration of trust, it is important to speak to an experienced trusts and property solicitor, as you need to ensure your interests are adequately protected and make sure that you fully understand any tax and other implications.

Contact us

If you need any further advice on declarations of trust or other property matters please contact one of our Residential Property experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.