Buying a property can bring with it lots of new terminology and vocabulary. You may hear this type of form mentioned but you may not be quite so familiar with its purpose. Also known as an Occupier Waiver Form, a Deed of Postponement, Consent to Mortgage or a Deed of Consent, this form is used by a lender when granting a mortgage on a property. It is signed by anyone aged over 17 who is not the legal owner of a property but is living in that property at the time at which you decide to take out a mortgage on it.
What is the purpose of an Occupier Waiver Form?
The form is used to give the mortgage lender protection in the event of repossession caused by defaulting on repayments or breach of mortgage conditions. It prevents any adult living in the property who is not its legal owner from making a claim of right of occupation. Lenders usually insist that adult occupiers sign this consent form before they release the mortgage funds.
Getting anyone who is not party to the mortgage to sign this form means that they waive their legal rights to the property, and, in the event of repossession, they can be evicted. In most cases, the occupier is a husband, wife or child over the age of 18. Deeds of Consent may become more common as the difficulties of getting on the property ladder mean that more young adults are living with their parents than ever before.
According to the Office for National Statistics 3.3 million 20 to 34-year-olds were living with their parents in 2015 compared to 2.7 million in 1996, and in the current financial climate, the number is expected to rise each year.
What to do if you have to sign an Occupier Waiver Form?
In most cases, an individual being asked to sign an Occupier Waiver Form or Deed of Consent needs to seek independent legal advice, such as that offered by Sam Conveyancing, before signing it. Usually, this independent advice is provided by a practising solicitor or a licensed conveyancer.
It is not possible for the same solicitor to handle a property purchase and provide legal advice to an occupier. While seeking independent legal advice may seem to be something of an inconvenience, lenders want to make sure that the implications of the document being signed are fully understood by the occupier. It also means an individual cannot later allege that the signature on the consent form was given under duress or unwittingly.
What happens if independent legal advice is not sought?
If an occupant is told to seek legal advice and they fail to do so before signing an Occupier Waiver Form, then the lender may refuse to proceed with the mortgage. The possibility of opting out from independent legal advice depends on the mortgage lender and their terms. Within the form, it will state whether independent legal advice is advised or required.
Most lenders will insist on it, however. A solicitor will need to confirm that they have given legal advice about the form, warned of the risks of signing it, received confirmation that you wish to sign it and confirm they are satisfied that the terms of the Deed of Consent have been fully understood. There must also be a witness to the signing of the document. This person must be over 18, reliable and cannot be a family member. They should not stand to benefit from the signing of the form in any way.
