Declaration of Trust Solicitors

A Declaration of Trust is a legally binding document which sets out who owns what shares in a jointly owned asset.

Declaration of Trust

A Declaration of Ownership (also known as a “Declaration of Trust”) is a legal document commonly used to set out the interests of individual parties where an asset is held in joint names with others. When a couple, for example, purchase their home, they may decide to put in place a Declaration of Ownership to set out their property interests. They could, for instance, decide that the property should be held equally or specify unequal proportions.

There are a number of benefits to putting in place a Declaration of Ownership. It not only clarifies the way in which the property is to be owned but also confirms the responsibilities of each of the co-owners, thereby avoiding complications from arising in the future. For example:

Mortgage and other outgoings – who will be responsible for paying the mortgage and other household bills? Should the costs be divided equally between each of the owners or in the same proportions as they intend to hold their property interests? If one party is to take on sole responsibility, will they be reimbursed out of the sale proceeds or not?
Repairs and maintenance – who will be responsible for the repair and general maintenance of the property? Should the costs be divided equally between each of the owners or in the same proportions as they intend to hold their property interests? If one party is to take on sole responsibility, will they be reimbursed out of the sale proceeds or not?
Power of sale or option to buy – should the co-owners’ power of sale be restricted in anyway? If the relationship breaks down for example, should a sale be forced to take place within a specified time frame or should one co-owner be given the option to buy out the other co-owner’s share?

As this is a legally binding document, which protects the co-owners’ interests in the property, it can be extremely useful if a disagreement arises between the co-owning parties.

A well prepared Declaration of Ownership will help avoid dispute if all factors such as those referred to above have been agreed from the outset.

There are also potential tax implications to consider as a result of purchasing a property. Here is a summary of some of the relevant taxes:

Stamp duty – this has become a more complicated area of tax with the inclusion of the ‘additional’ 3% rate for second homes. Careful consideration is needed if one or all of the owners are purchasing a second property.
Capital gains tax – if one or all of the owners do not intend to occupy the property, a potential charge to capital gains tax may arise upon a future sale. There are options available to help mitigate capital gains tax, which we can advise further on.
Inheritance tax – in the event of one or all of the owners dying, inheritance tax may be payable from the deceased co-owner’s estate. Every owner should consider the inheritance tax position of their estate and the consequences if inheritance tax is due. We can assist with inheritance tax planning and if possible mitigate inheritance tax.

We also recommend all co-owners have a Will in place when making a Declaration of Ownership to ensure their respective shares in the property pass as they intend in the event of death. If an existing Will is in place already, we recommend reviewing this. Please refer to our “Why do I need a Will” factsheet for more information.

If you would like to discuss the creation of a Declaration of Ownership in more detail, please contact us. It is important to note we can only act for one owner when preparing a Declaration of Ownership. It would be advisable for the other co-owners to seek independent legal advice.

FAQs

What if I am purchasing a property with unequal shares?

It is becoming more and more common in the current market for people to jointly own a property.

With the rise in jointly owned property in recent years, we are now seeing a rise in declaration of trust disputes due to a lack of documented input at the time of purchase. More often than not a declaration of trust is a simple procedure, but it will ensure your share of the property is fully protected, which will mitigate any future disputes.

If you require any further information we will provide you with the necessary assistance alongside your purchase, to ensure the appropriate documentation is put in place for you.

We have extensive experience in drafting declarations of trust, however complex, which will alleviate the pressure from you during the stressful time of purchasing your property, but most importantly it will help protect you in the event of anything going wrong further down the line.

What do I Include in a Declaration of Trust document?

A simple Declaration of Trust may just specify what percentage share each owner holds. A more complex Declaration of Trust can include many points including the following by way of example:

Who will pay what towards the mortgage and bills?

What will happen if one owner wants to sell the property but the other does not?

What would happen if the property is in negative equity when it is sold?

Who will pay for repairs and upkeep of the property?

How the income would be split if the property is rented out?

Why do I need a Declaration of Trust document?

Having a Declaration of Trust in place can help avoid disputes where someone has made a financial contribution to a property which was not a loan or a gift to the owners.

This is because that contribution may make them a ‘Beneficial Owner’ of the property. This can be considerably complicated to work out who is entitled to what should a property be sold.

Examples of individuals who may have contributed to the costs of the Property but who are not registered as an owner at the Land Registry include:

A person who has contributed a lump sum towards the deposit such as the legal owner’s parents;
The legal owner’s partner who now contributes towards the mortgage and upkeep of the property but is not named as an owner on the title;
Someone who has added value to the property even if they are not an owner, such as the adult child of the legal owner who paid for the extension to be built in which they now live.

All of the above circumstances have individuals who have contributed to the value of the property even though they are not a legal owner as specified on the Land Registry title of the property.

However, they are entitled to a share of the equity of the property even though they are not named on the title. These people are known as ‘Beneficial Owners’. If you are a Beneficial Owner but not a legal owner you may find it difficult to prove how much you are entitled to if the legal owner refuses to acknowledge that you have contributed towards the value of the property.

How much does a Declaration of Trust cost?

Depending on your specific requirements, we are able to offer you the following options:

Preparation only – this includes preparation of the Declaration of Ownership document only. Our fee for a straightforward Declaration of Ownership, setting out each of the co-owners’ interests in the property and taking into account any initial contributions made towards the purchase price, will be from £300 plus VAT. If, however, you wish to include more specific provisions to clarify matters such as the payment of the mortgage, repairs and power of sale, we will quote you accordingly based on the level of complexity of the document to be prepared. This option does not include a meeting or any other related tax or cohabitation advice.
30 minute consultation and preparation – this includes a meeting where we will discuss your instructions and outline the options available. We will also summarise any tax or cohabitation issues for you to consider. Our fee for the meeting (limited to half an hour) will be £150 plus VAT and our fee for preparation of the Declaration of Ownership will be as set out above.
One hour consultation and preparation – a longer meeting will provide you with more comprehensive advice specific to your personal circumstances including tax and other related legal issues. Our fee for the meeting will be from £300 plus VAT and if you would like us to prepare a report confirming our advice following the meeting, then our fee for the report will be an additional £250 to £750 plus VAT depending on the complexity of your circumstances. Our fee for preparation of the Declaration of Ownership will be as set out above. All our fees will be confirmed when taking instructions.

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