Occupier Consent Form - What does your mortgage lender need?

21/02/2019

Do you need independent legal advice?

Our solicitor handles independent legal advice for Occupier Consent Forms (deed of consent/postponement). Click below to get a quote or call us on 0333 344 3234 (local call charges apply).
  • Appointments available
  • Meetings via Skype or face to face
  • Our solicitor can work with any mortgage lender including Halifax Bank Plc, Barclays Bank Plc (The Woolwich), National Westminster Bank Plc (Natwest), Skipton Building Society, HSBC Bank Plc and Aldermore.

An Occupier Consent Form waives certain rights of an occupier of a property in favour of the mortgage lender. This form is also known as a Deed of Consent, Deed of Postponement and Consent to Mortgage or an Occupiers Waiver form. The overall purpose for 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).

The occupier, who in most cases is a husband, wife or child over the age of 18, 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 a solicitor to obtain independent legal advice to ensure they fully understand the rights they are waiving. In this article we explain what is included in an occupier waiver form, what are the risks to the occupier, why you need, who can provide independent legal advice and who can be a witness.

What is included within an Occupier Consent Form?

The content within the forms varies depending on which mortgage lender you have a mortgage with, 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.
    • Click the link below to download an Occupier's Consent Form template

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Why do you need independent legal advice for an occupier waiver form?

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 mortgage lender requests the occupier seek independent legal advice and during that meeting the solicitor confirms:

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.

Who can provide Independent Legal Advice?

The requirements vary depending on the ILA, however the legal advisor will most commonly be a practising Solicitor, Licensed Conveyancer or a Fellow of the Institute of Legal Executives. You cannot use the same person helping you with your conveyancing transaction.

Do all mortgage lenders require independent legal advice?

Whether you can opt out from obtaining independent legal advice for an occupier consent form depends on the mortgage lender and their terms. In the Skipton Building Society Deed of Consent the occupier can opt out and it states:

"I understand I am strongly recommended by the Lender to take independent legal advice before signing the Deed of Consent. As well as reading the Deed of Consent, I have been provided with and considered the mortgage offer and mortgage conditions. I have decided not to take independent legal advice because I fully understand the consequences of signing and wish to proceed of my own free will."

Within the deed of consent it'll state whether independent legal advice is advisable or a requirement.

Who can be a witness on a consent to mortgage form?

  • The witnesses should be over 18 years old and should be people you believe could give reliable evidence about witnessing your deed if asked in future (although this rarely happens);
  • The witnesses should not be members of your family; and
  • The witnesses and their husbands, wives and civil partners should not benefit from your deed in any way (they will lose this benefit if they act as one of your witnesses).

Do you need independent legal advice?

Our solicitor handles independent legal advice for Occupier Consent Forms (deed of consent/postponement). Click below to get a quote or call us on 033 344 3234 (local call charges apply).
  • Appointments available
  • Meetings via Skype or face to face
  • Our solicitor can work with any mortgage lender including Halifax Bank Plc, Barclays Bank Plc (The Woolwich), National Westminster Bank Plc (Natwest), Skipton Building Society, HSBC Bank Plc, Aldermore and

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