Independent Legal Advice on a Deed or Declaration of Trust

What is a deed of trust?

A deed of trust (often called a declaration of trust) is a legal document that records who really owns a property and in what shares. It is commonly used when people contribute different amounts to a purchase (for example, friends buying together, an unmarried couple, or a parent putting money towards a child's deposit), so that everyone's share is written down clearly. A declaration of trust over land has to be in writing and signed (section 53 of the Law of Property Act 1925), and most are signed as deeds.

This service is independent advice on a deed that has already been drafted, usually by the conveyancer handling the purchase. Drawing one up is a drafting job for a conveyancer; what we provide is the advice some lenders and solicitors ask for before one of the people signing it goes ahead.

When does a deed of trust need independent legal advice?

Not every deed of trust does. The request usually comes in situations like these:

• One owner is taking a smaller share than they paid for, or giving a share up, for example where one partner put in most of the deposit.
• A parent or relative has contributed money, and the deed records it as a share of the property, as a loan, or as neither.
• The same conveyancer acts for all the buyers, and the deed favours one of them, so the conveyancer asks the other to take independent advice.
• A lender asks for it, because someone's interest under the trust affects the lender's security.

In each case the solicitor reads the deed with you and explains what it fixes: your share now, what happens on a sale or if one of you wants to leave, how contributions and mortgage payments are treated, and how it sits alongside the mortgage.

Deeds of postponement and occupier waivers

A deed of postponement is a different document: it moves an existing interest or charge, such as a family member's share or a Help to Buy equity loan, behind a new lender, so the lender is paid first if the property is sold. Our deed of postponement guide covers it in full, including the Help to Buy and Right to Buy versions, and the advice is booked through this service. A similar document, sometimes called a deed of consent or occupier's waiver, may be asked of adults living in the property.

Why does the lender require independent legal advice?

Signing one of these deeds usually means giving something up: priority over the lender, or rights you might otherwise have in the property. Because the person signing often is not the borrower and gains nothing directly from the mortgage, lenders and conveyancing solicitors want to be sure the document is signed freely, with a full understanding of what it means, and without pressure from family members or anyone else.

Independent legal advice (ILA) provides that assurance. A solicitor with no connection to the transaction explains the deed to you privately, checks you understand it and are signing willingly, and then issues a certificate confirming the advice was given. Our certificates are prepared to satisfy standard lender requirements. If your lender has its own certificate form, we will complete that instead: just email info@ilahub.com.

The main risks, explained simply

Nothing here should put you off signing. These deeds are routine and often the sensible way to complete a transaction. But you should understand the key implications before you do:

• A deed of trust fixes your share. The percentages you agree now normally decide what each person receives when the property is sold, even if circumstances change later.
• A deed of postponement puts the lender first. If the property is sold or repossessed, the mortgage is repaid before your money. If the sale price does not cover everything, you could get back less than you put in, or nothing.
• You may be waiving rights to stay in the property. An occupier's consent or waiver typically means you could not rely on your occupation to prevent the lender taking possession.
• These deeds are hard to undo. Once signed and relied upon by the lender, you generally cannot change your mind, so the time to ask questions is before you sign.

Who typically needs this?

The most common situations we see are co-owners recording unequal contributions in a declaration of trust where a lender or solicitor has asked for independent advice; parents (or other relatives) who have lent or gifted deposit money and are asked to confirm how it is treated, or to postpone their interest behind the mortgage; and adult occupiers (often grown-up children or partners) living in a property being mortgaged or remortgaged. If you have been told you need an ILA certificate for any deed of trust, postponement, consent or waiver, we can help. If you are not sure which document you have, our FAQs or a quick email to info@ilahub.com will point you in the right direction.

How ILA Hub's process works

The advice is given by secure video call, UK-wide. You book online, verify your ID online beforehand, then meet your solicitor by video at a time that suits you, Monday to Friday, 9am to 7pm. The solicitor goes through the deed with you in plain English, answers your questions and, once the appointment is complete, emails your signed ILA certificate the same working day. Deeds need a witness who is physically with you when you sign (HM Land Registry practice guide 8), so have an independent adult ready to join the end of the call. If your lender needs a wet-ink original, you post the signed document to us and we countersign it and return it.