Occupier Consent Form
- As an occupier of a property, you can still gain rights to a property, even if you are not a legal owner. To protect their interest, lenders might ask you to sign an occupiers consent to mortgage form.
- The purpose of this transaction is to allow the lender to enforce the terms of the mortgage should the legal owner fail to make their mortgage repayments.
- Since you're waiving your rights to the property, you must book a meeting with an independent legal advice solicitor who can best explain the risks involved.
- In this article, we explain what is included in an occupier waiver form, why you need it, who can provide independent legal advice and finally who can be a witness.
What is a occupier consent form?
An Occupier Consent Form waives certain legal rights of a resident of a property in favour of the mortgage lender. It is also known as a Deed of Consent, Deed of Postponement and Consent to Mortgage or an Occupiers Waiver form.
The overall purpose of completing this document is to give the mortgage lender the right to remedy any breaches under the terms of the mortgage, without the occupier having a right to stop them (hence, the occupier waives their rights to the property).
What does occupier status mean?
In this case, an occupier will be any resident of the property who is not registered as a legal owner of the property. In most cases, this is a husband, wife or child over the age of 18.They may not be aware of the rights they are waiving, which could make them homeless. As such, the mortgage lender requires the occupier to speak to an independent legal advice solicitor to ensure they fully understand what they are waiving in signing an occupier's deed of consent to mortgage.
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Why is independent legal advice needed for an occupier waiver form?
Even if the other occupiers of the property are not registered as legal owners, they could still become beneficial owners should they, for example, contribute financially to the property costs. This can interfere with the mortgage lender being able to enforce the terms of the mortgage and repossess your house if you fail to make your payments.
For this reason, they will be asked to sign an occupiers consent form and waive their rights to the property. However, the mortgage lender wants to ensure that the occupier is fully aware of the terms of the consent that they are giving. To evidence this, the occupier must seek independent legal advice and during that meeting, the occupier's consent form solicitor confirms the following:
At a meeting NOT ATTENDED BY THE BORROWER OR THE LENDER, the solicitor I have engaged has:
- Given me independent legal advice, including explaining the contents, nature, legal and practical effect of signing the Deed of Consent;
- Advised me (using a copy of the mortgage offer and mortgage conditions provided to me) of the purpose and amount of the loan advance, the interest rate, the term of the initial loan and the payment details and that further advances may be made in future;
- Warned me of the risks involved in my signing this Deed of Consent;
- Received my confirmation that I wish to sign the Deed of Consent; and
- Confirmed they were satisfied I understood the nature and extent of my obligations under the Deed of Consent and the impact and risks of signing it.
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What is included within an Occupier Consent Form?
The content within the forms varies depending on the mortgage lender however the following is normally included:By signing this Deed of Consent, you confirm to, and agree with, the Lender as follows:
- You are, or are about to be, in actual occupation of the Property (but not as a tenant);
- You consent to the Borrower creating (and registering) the mortgage in favour of the Lender to secure the loan and any further advance(s);
- You accept the amount secured by the mortgage can vary from time to time and will include the loan(s), interest and all other sums payable to the Lender in connection with the loan(s);
- You agree that your additional consent will not be required for any further advances;
- You agree that any estate, interest or rights you have in the Property or its proceeds of sale (including any charge arising in respect of any matrimonial or civil partnership home rights by virtue of section 31 of the Family Law Act 1996) now or at a later date are postponed to, and take effect after, the rights, interests and remedies of the Lender under the mortgage;
- You charge all (if any) of your estate, interest and rights in the Property or the proceeds of sale of the Property to the Lender as a continuing security for the payment of all money and liabilities secured by the mortgage;
- You agree not to assert or rely on any such estate, interest or rights in a manner which may obstruct, delay or hinder the orderly realisation of the Lender’s security over the Property;
- You understand the Lender may enforce the mortgage by seeking a court order for possession of the Property, by selling the Property and/or by appointing a receiver to manage the Property;
- You agree that if the Lender or any receiver obtains a court order for possession of the Property, you will leave the Property;
- You agree that the Lender’s rights under this Deed of Consent will not be affected by the Lender giving the Borrower extra time to pay what is owed under the mortgage or any other indulgence; and
- You agree the Lender may at any time transfer, charge or otherwise dispose of the mortgage.
Caragh is an excellent writer in her own right as well as an accomplished copy editor for both fiction and non-fiction books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey and mortgage related articles.
