Occupier Consent Form
- If you are mortgaging your home, any adult who lives in the property but is not a legal owner will need to waive their right to occupy by signing an occupier consent form.
- This allows the lender to enforce the terms of the mortgage should the legal owner fail to make their mortgage repayments.
- Since the occupier is giving up some of their rights to the property, they must get independent legal advice from a specialist 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 an occupier consent form?
An Occupier Consent Form waives the right of a resident of a property to reside in the property in the event of repossession in favour of the mortgage lender. It is also known as a Deed of Consent, Consent to Mortgage form or an Occupier Waiver form.
Why does the lender need the occupier's consent to mortgage the property?
As an occupier, your right to occupy the property conflicts with the lender's right to repossess it; they would not grant a mortgage on the home as they'd be concerned that they may not be able to get the house back if the borrower fails to repay the loan.
By consenting to waive your right to occupy, you assure the lender that they will not face a legal battle to foreclose on the home in the (hopefully unlikely) event that the borrower fails to repay their mortgage.
What is the age limit for an occupier's consent form?
An occupier is only required to complete an occupier's consent form if they are over the age of 16 or 18 (differs by lender) and not registered as a legal owner of the property. In most cases, this will be a spouse or adult child.
Why is independent legal advice needed for an occupier waiver form?
Occupiers could become beneficial owners should they, for example, contribute financially to the property costs. This gives them a claim to the equity, which 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 occupier's deed of consent to mortgage and waive their rights to the property.
Most people are not familiar with these legal rights or the implications of waiving them, which could make them homeless if the house were to be repossessed.
As such, the mortgage lender requires the occupier to speak to an independent legal advice solicitor to ensure they are fully aware of the terms of the consent that they are giving. 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.
Lender Panels**
What is included in an Occupier Consent Form?
The content within the forms varies depending on the mortgage lender. 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.
What if I refuse to sign an occupier consent form?
If the occupier refuses to sign the occupier consent form, the lender may refuse to grant the mortgage.
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
