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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 71030
Experience:  Over 5 years in practice.
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Hi,I have purchased a house with a friend but the mortgage

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Hi, I have purchased a house with a friend but the mortgage is in his name and we have both signed a decleration of trust with a witness each. It was written by a solicitor and at the bottom it says: The parties hereto will make an application to HM Land Registry and execute and do all other such documents acts and things as may be necessary or convenient to procure and that an appropriate restriction and any other necessary entries may be entered or registered in the register of the title referred to in the First Schedule hereto foe the purpose of giving effect to this Deed. Underneath that is says: The First Schedule All that freehold property to be known as ** and to be registered at the Land Registry under the title number SYK. What do I need to do and also will this Deed ensure that I get back my 50 percent share in the property if one day my friend refused to give me the money when we sell and it went to court? It does state we both have to pay half of Everything, what the terms are if we don't agree on a selling price etc and states thay we are tenents in common. Regards David

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Did you both have individual solicitors please?
Customer: replied 3 years ago.

No we both had the same solicitor

Customer: replied 3 years ago.

It was the same solicitor that was dealing with the legal fees. We just paid them a just paid them a 100 pound to write us the declaration of trust and we signed it with our parents as witness'a

The best way of dealing with this is for you to register a charge against the property in respect of the money that you are owed. However if there is a mortgage on it, the lender may not agree to that if there is a restriction which says that the lender must consent to further charges or mortgages.

The alternative is to place a restriction on the property whereby the person dealing with the conveyancing as to provide a certificate (confirmation) that the provisions of the trust deed dated XXX have been complied with before it is sold.

So basically unless you get whatever it is that you are supposed to get from the trust deed, the property cannot be sold.

There is nothing unusual about either of these and the solicitor who dealt with the conveyancing for you may do it although he may consider there is a conflict of interest between your interests and that of your co-owner and he may suggest that you both take independent legal advice. I think that is highly likely.

Can I clarify anything for you?

Customer: replied 3 years ago.

OK I think I know what I need to do, we need to contact Land Registry and make an application to get the restriction put on the house. How do I stand at the moment without that restriction being on the house but we each have a signed copy of the declaration of trust. Does the deed still have effect or not until the restriction is on the property?




Yes, the deed still has effect but a buyer doesn’t know about it.

It would therefore not stop your co-owner selling or remortgaging.

If he did so, he would be in breach of the terms of the trust which are still enforceable it's just that it is easier to enforce the terms when he wants to do something and cannot do so unless he has complied.
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