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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33519
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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Alex My wife and I are tenants in common with equal

Customer Question

Hello Alex
My wife and I are tenants in common with equal shares in our home.
I have borrowed money from my wife and I want to give her a charge over my share of the property.
1. Is it possible for one beneficial owner to register a legal charge in favour of the other beneficial owner?
2. What forms need to be completed to achieve our aims and have the charge registered at the Land Registry?
Thank you
JC
Submitted: 1 year ago.
Category: Property Law
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question
My name is Clare
I shall do my best to help you but I need some further information first.
Could you please explain who you are trying to protect by doing this and from what?
Clare
Customer: replied 1 year ago.

Hello Clare

I had a business loan from Lloyds Bank secured on our home supported by a personal guarantee from me secured on our home.

When the business failed my wife loaned to me money from her inheritance from the sale of her parents home to clear the Lloyds loan.

The Lloyds security was removed as the loan had been satisfied.

There is now a possibility that I may be forced into bankruptcy and I need to ensure that the loan to me from my wife is recognised and is protected by giving her a charge over my share of our home.

We have all of the documentation available to support the above.

Please be assured that this is not a 'scam' of any sort and, believe it or not after costing my wife her inheritance, the course of action I am seeking is completely amicable.

I trust this assists and that you are able to answer my original questions.

Thank you.

Jack

Expert:  Clare replied 1 year ago.
Hi
I am sorry I do not have good news - but it is better that you know the position that you are in.
You cannot give your wife a mortgage over your share of the equity - it is not possible.
Your only option is to sign a Declaration of Trust giving her a larger share of the equity in the property.
However - and here is the bad news - it will not be effective against the Trustee in Bankruptcy as it will be seen as treating your wife as a Preferential Creditor and the Declaration will be ignored.
I am sorry not to have been able to be more positive
Please ask if you need further details
Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33519
Experience: I have been a solicitor in High Street Practise since 1985 with a wide general experience.
Clare and other Property Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello Clare

In a tenancy in common where there are equal shares held, can this be changed to say 85% and 15%?

And if so how would this be achieved?

Thank you again.

Jack

Expert:  Clare replied 1 year ago.
Hi
This can be changed by way of a Declaration of Trust - but as I said it will not be effective in terms of the Trustee in Bankruptcy
Clare
Customer: replied 1 year ago.

Hello Clare

Is there standard wording/template for a Declaration of Trust to vary the terms of the tenancy in common?

Do you then need to register the Declaration of Trust with the Land Registry or is there any other confirmation process that is needed to 'legalise' the document, so to speak

Thank you for your assistance again.

Kind regards

Jack

Expert:  Clare replied 1 year ago.
Hi
I have looked for a template - there is a free one here
https://www.lawontheweb.co.uk/law-shop/consumer-products/legal-documents/trusts-and-property/declaration-of-trust-in-relation-to-land-of-two-co-owners-joint-tenants
If you complete it I will be glad to check it
It will need to be registered at the Land Registry
Clare
Customer: replied 1 year ago.

Hello Clare


I note from my file of papers on the property that there is a Declaration of Trust on the file severing the joint tenancy, and I have extracted the pertinent paragraphs of the 1 page document as follows:



BACKGROUND



(A)








(B) The joint tenancy has been severed



(C)The first and second owner wish to declare the extent of their respective beneficial interests in the property



DECLARATION OF TRUST


'The First and Second Owner agree to sever their joint tenancy of the property with effect from 18 JULY 2013 and declare that they hold the property on trust for themselves as tenants in common in equal shares.'



REGISTRATION OR ENDORSEMENT


'The First Owner and the Second Owner agree to apply to HM Land Registry for the entry of a standard form A restriction against the title to the property'



Will a new Declaration of Trust supersede the first or is there some sort of 'variation' that needs to be filed to change the original Declaration?



Thank you.

Jack

Expert:  Clare replied 1 year ago.
Hi
You will need to sign a Variation of the original deed
Clare
Customer: replied 1 year ago.

Hello Clare

You indicated that you were able to prepare a Variation document for me.

Have you been able to do this please?

Thank you.

Jack

Expert:  Clare replied 1 year ago.
Hi Jack
My apologies for the delay
I shall let you have this tomorrow when I am more awake!
Could you respond in the morning so it comes to the top of the list!
Clare
Customer: replied 1 year ago.
Hello Clare
A reminder to ask you to deal with the Deed of Variation as soon as possible please
Thank you for your help
Jack
Expert:  Clare replied 1 year ago.
Hi
Deed of Variation
This Deed of Variation dated xxx of xxx 2015 is supplemental to the Declaration of trust made by xxxxx and xxxx both of xxxxx on 18th July 2013.
1. Following changes in the Matrimonial finances it has now been agreed that property xxxxxx will be held by the said xxxx and xxxx as Tenants in Common as to 85% to the said xxxx and 15% to the said xxx
Signed by the said xxxx
In the presence of
signed by the said xxxx
in the presence of
Hope you can see how this shoudl be set out!
Clare
Customer: replied 1 year ago.

Hello Clare

Yes, I can see how to set out the Deed.

Thank you.

Is there an official form that needs to be completed for filing together with the Deed and how much is the filing charge?

Thank you for your continued help.

Kind regards

Jack

Expert:  Clare replied 1 year ago.
Hi
You can simply write to Land Registry quoting the Title number with a copy of the deed of Variation (in fact for certainty quote the Title number of the deed after the address with the words "registered at HM Land Registry under title number xxx").
Clare

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