When there is a mortgage being registered against a property where there is an adult occupier, the lender will require the adult occupier to sign a form known as an Occupier’s Consent Form. This form is also known as a Deed of Consent, a Deed of Postponement and Consent to a Mortgage or an Occupiers Waiver Form.
What is an adult occupier?
An adult occupier is someone over the age of 18 who is not a registered owner of the property (and therefore not named on the mortgage) nor are they a tenant of the property.
What is an occupier consent form?
A form that by signing it, means that the adult occupier accepts:
- The mortgage itself;
- That the amount secured by the mortgage can vary from time to time and will include other sums payable to the lender such as interest;
- That their additional consent will not be required for any further advances;
- Any rights they may have in the property or its proceeds of sale are postponed after the mortgage;
- The lender may at any time transfer, charge or otherwise dispose of the mortgage;
- The lender may enforce the mortgage by seeking a court order for possession of the property;
- If the lender or any received obtains a court order for possession of the property, they will leave the property;
- That they charge any estate, rights and interest in the property or proceeds of sale to the lender as continuing security for the monies secured by the mortgage;
- They cannot hinder the lender’s security over the property.
Why does a lender require this?
The overall purpose of the consent is to give the lender the ability to take action against the borrower for any breach of the mortgage without the occupier having the right to stop them. By signing this form, the occupier is waiving their rights in the property.
Does an adult occupier need legal advice?
Whilst we would always recommend that an adult occupier obtain independent legal advice before signing any adult occupier consent form, some lenders allow the adult occupier to decide whether they obtain such advice. However, other lenders require the adult occupiers to obtain independent legal advice and will not allow them to proceed without. Any solicitor providing such advise will need to sign a certificate to say that the appropriate advice was given and that they witnessed the adult occupier’s signature on the form. The lender will want to ensure that the adult occupier is fully aware of the implications of signing the consent.
You should let your conveyancer know if there will be an adult occupier living in the property as early as possible and let your conveyancer know if your circumstances change at any point during the transaction. You should also make your lender aware as early as possible – preferably when making the mortgage application.
This article was prepared by Ashton Sutcliffe, an Associate in the Property team at WBW Solicitors in Newton Abbot. If you would like to contact her to discuss anything mentioned in this article or for any property-related query, please call 01626 202370 or email ashtonpartridge@wbw.co.uk.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
