Occupier Consent Form
- If you're living in a mortgaged home but are not a legal owner, any adult (typically 16+) will need to waive their right to occupy by signing an Occupier Consent Form.
- This form allows the mortgage lender to enforce their rights, including repossession, should the legal owner fail to make their mortgage repayments.
- Because you are giving up significant rights to the property, you must obtain Independent Legal Advice from a specialist solicitor to understand the risks involved.
- This article explains what's included in the form, why it's needed, why you need ILA, and who can witness your signature.
What is an Occupier Consent Form?
An Occupier Consent Form is a legal document signed by an adult who lives in a property but isn't named as a legal owner on the title deeds, especially when that property is being mortgaged.
Its main purpose is to acknowledge and waive the occupier's right to reside in the property if the mortgage lender ever needs to repossess it due to mortgage default.
You might also hear this form called a Deed of Consent, Consent to Mortgage Form, or simply an Occupier Waiver Form – they all serve the same function.
What is the age limit?
An occupier is only required to complete an Occupier Consent Form if they are an adult (typically aged 16+, though this can differ slightly by lender) and are not registered as a legal owner of the property. In most cases, this will be a spouse, partner, or adult child living in the home.
Why lenders require an Occupier Consent Form
This is a common question: "Why can't the mortgage just be in the owner's name?" The simple answer is that, even if you're not a legal owner, you might have certain "overriding interests" or "beneficial interests" in the property just by living there or contributing financially.
These rights, although not formally registered, could potentially give you a legal claim to occupy the property. From a mortgage lender's perspective, this creates a significant risk.
If the borrower defaults on the mortgage, the lender needs to be confident they can repossess the property to recover their loan. An occupier's potential right to remain could lead to a lengthy and costly legal battle, delaying or even preventing repossession.
By signing the Occupier Consent Form, you confirm that your rights to occupy the property won't hinder the lender's ability to take possession and sell it if necessary. This provides the lender with the security to grant the mortgage in the first place.
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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:
During a confidential meeting, not attended by the borrower or the lender, your ILA solicitor will confirm the following key points with you:
- They have given you comprehensive independent legal advice, including a thorough explanation of the contents, nature, legal, and practical effect of signing the Deed of Consent.
- They have advised you (using a copy of the mortgage offer and mortgage conditions provided to you) of the purpose and amount of the loan, the interest rate, the term of the initial loan, payment details, and that further advances may be made in future.
- They have clearly warned you of the significant and potential risks involved in your signing this Deed of Consent.
- They have received your confirmation that you genuinely wish to sign the Deed of Consent, free from any undue influence.
- They are satisfied that you fully understand the nature and extent of your obligations under the Deed of Consent and the impact and risks of signing it.
What is included in an Occupier Consent Form?
The precise wording and content within Occupier Consent Forms can vary slightly depending on the specific mortgage lender.
However, they all contain similar core clauses designed to protect the lender's interest. By signing this Deed of Consent, you confirm and agree to the following with the Lender:
What if I refuse to sign an occupier consent form?
If the occupier whose consent is required refuses to sign the form, the mortgage lender will almost certainly refuse to grant the mortgage.
Without the security provided by this form, the lender's investment is at risk. They will not proceed with the mortgage application, which means the property transaction (whether it's a purchase or a remortgage) cannot be completed. This decision would effectively block the legal owner (the borrower) from obtaining the necessary funds.
Who provides Independent Legal Advice and witnesses the form?
Independent Legal Advice (ILA) for an Occupier Consent Form must be provided by a specialist solicitor who is truly separate and independent from the solicitors acting for either the borrower (the legal owner getting the mortgage) or the mortgage lender. This strict independence ensures that the advice you receive is solely in your best interest as the occupier, free from any conflict of interest.
Once the ILA solicitor has provided the advice and is satisfied that you fully understand the implications, they will then witness your signature on the Occupier Consent Form.
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Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands-on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
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.
