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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, I hope you can help. My husband and I are buying ahouse

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Hi, I hope you can help. My husband and I are buying ahouse together. I already own 3 properties so wont get a fourth mortgage so the mortgage is in his sole name. We will both be paying equal amounts in to the mortgage and the deposit and bills and I believed a deed of trust was sufficient in law in case in the future we split up. The conveyance I am using says you cant have a deed of trust drawn up unless I am mentioned in the mortgage is this true?

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

do you have any kind of prenuptial postnuptial agreement between you and your husband please?

Customer:

No, nothing

Josh-2010 :

thank you.

Josh-2010 :

Your conveyancer is not correct in what he tells you but he's also not exactly wrong.

Josh-2010 :

I will explain... Would you like to continue?

Customer:

Yes

Josh-2010 :

thanks. There is nothing preventing you both entering into a trust arrangement irrespective of who is named on the mortgage. However, because the conveyancer is acting for both you and the lender he could not draw up such a trust document for you without informing the lender that he is doing so and the lender would likely refuse permission as they would say was a breach of their lending terms

Josh-2010 :

this is a common scenario and the solution is for you to instruct a separate solicitor who is not acting for the lender to draw up such a trust deed. That solicitor owes no obligations to the lender and therefore does not need to tell of it. The trust deed is perfectly valid between you and your husband though it has no effect against the lender

Customer:

It wouldn't be him drawing up the trust document - they are an online conveyance - I would be using my family solicitor to draw this up after completion of the sale. What happens then?

Josh-2010 :

that is to say, if the lender repossess the property, you would not be able to use the trust deed to prevent this of course you would be able to use it as a means to claim your share of the property as evidenced by the trust deed against your husband

Customer:

As I typed, you answered what I was writing!!!

Josh-2010 :

that would be absolutely fine

Josh-2010 :

Your solicitor would have no difficulties with the lender in those circumstances

Customer:

Perfect. Issue solved. Continue with the conveyance then get a deed of trust drawn up after?

Josh-2010 :

Quite.

Josh-2010 :

There is one other aspect before you go...

Customer:

OK

Josh-2010 :

You will need to consider that whilst the deed of trust will be effective in evidencing your respective shares you will need to consider that if you have no post nup or pre nup that your husband will still be able to make potential financial claims against you and vice versa of course were you to divorce.

Josh-2010 :

The DoT would be the starting point for evidencing your respect ownership in such cases but a divorce court does have the power to vary the terms in a settlement potentially.

Josh-2010 :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

Yes it does, thanks Josh. I think at some point in the future my Mum will make us all draw up legal docs stating what are husbands are or are not entitled to! But for now I am happy to get a deed of trust in place after we move in!

Customer:

Thanks Josh

Josh-2010 :

A pleasure

Josh-2010 :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me.

Customer:

No probs. All done.

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