Executing the deed requires it to be signed, dated, attested by a witness and then ‘delivered’, which simply means indicating that you intend to be bound by the deed. 

Registering a Declaration of Trust as a restriction on the land registry serves to safeguard the interests of all parties involved in the Declaration of Trust.

After a meeting with your solicitor, a draft Declaration of Trust is composed and forwarded to you for review. Once finalised, a final copy is drawn up and signed in the presence of a witness. If restrictions are to be recorded at the Land Registry, we will then submit the necessary Land Registry application on your behalf.

There are two different ways in which you can own a property jointly, as:

Joint tenants
Property held as joint tenants means each party owns an equal share of the property and one party has the equal, undivided right to keep or dispose of the property. This also means the property automatically goes to the other owners if you die, and that you cannot pass on ownership of the property in your will.

Tenants in common
Property held as tenants in common means that each tenant owns separate and distinct shares of the property. In this case the property will not automatically go to the other owners if you die, and you are able to pass on your share of the property in your will.

A Declaration of Trust is a legally binding document as long as it is accurately prepared.

In some instances, there is a differentiation between a Declaration of Trust and a Deed of Trust. The former is often seen as a less formal document that simply outlines the division of the property ownership into shares, without including additional legal ownership clauses or sale provisions. However, these terms are frequently used interchangeably because a Declaration of Trust often includes more than just the division of beneficial interest. When this occurs, the document must fulfill the more rigorous requirements of a deed for execution.

Like any other legal agreement or document, a Declaration of Trust must satisfy several criteria to be legally recognised: it needs to be drafted as a deed (a formal legal document, usually created by a legal professional), all involved parties must prove that they willingly entered the agreement with full understanding of its implications, and all parties must sign it with witnesses present.

The objective of a Declaration of Trust is to eliminate any confusion about the future of each party's investment in a property. It is a legally binding document designed to safeguard against misunderstandings, disputes, and changes of mind, so it is not easily altered.

However, situations can change, and with the unanimous consent of the original signatories, the Declaration of Trust can be amended or rewritten.

For small changes, a deed of variation can be added to the original document to incorporate extra clauses. As long as the new deed clearly states which portions of the original document it's replacing, this can be a straightforward method to update minor details.

For larger modifications, it might be simpler to completely rewrite the Declaration of Trust. Reasons for a rewrite could be a significant change in the property's value (perhaps due to renovations or extensions) or alterations in the stakeholders of the property (for instance, if one person is bought out). As soon as the new Declaration of Trust is filed, it nullifies any older versions.

A properly prepared Declaration of Trust is meant to be clear and thorough, making it intentionally challenging to dispute in court. A court will only consider ignoring a Declaration of Trust if fraud or misrepresentation can be proven.

A Declaration of Trust will not always impact a property's mortgage. However, if it does, the parties involved in drafting the deed must secure the lender's consent before the document is officially filed.

Typically, a lawyer will examine the document to ascertain if it will affect the mortgage lender's security. If it does, the lawyer will reach out to the lender to secure their consent.

The primary concern for any mortgage lender is ensuring they get repaid, whether it is through regular mortgage payments or via the sale, transfer, or repossession of the property.

If the Declaration of Trust encompasses any conditions that might hinder the lender's ability to recover their money, their consent will be necessary. For instance, a Declaration of Trust can sometimes be used to grant someone with the legal right to occupy a property without being named on the mortgage. If the lender later attempts to repossess the house, this individual could impede the lender's action, as they are not subject to the mortgage terms.

In most situations, the Declaration of Trust should not affect the mortgage lender's security, which means there is no need to communicate with them before filing the deed. Nonetheless, it is always prudent to verify with the solicitor preparing the deed that the lender's consent is indeed not required.

If a cohabiting couple who have a Declaration of Trust decides to marry, the Matrimonial Causes Act 1973 supersedes the deed.

This act, among other things, outlines the court's authority in settling a divorce, including how it can determine the handling of property owned by the married couple.

If a married couple separates and the divorce proceedings reach court, the Declaration of Trust deeds will be considered as a reflection of the couple's intentions. However, the court is not mandated to adhere to the conditions outlined in the deed.

For enhanced certainty and to establish legally enforceable agreements that differ from the default terms of the Matrimonial Causes Act, a married couple should think about substituting their Declaration of Trust with a prenuptial or postnuptial agreement as soon as possible.

Similar to many legal documents, a quick internet search will reveal numerous websites selling pre-made templates for those looking to draft their own Declaration of Trust without soliciting a solicitor and consequently, avoiding the solicitor's fees.

However, a Declaration of Trust is intended to be a unique document detailing the financial arrangements between co-owners of a property and other interested parties. The deed's worth lies in its customised nature, and using a template risks omitting crucial details specific to the particular circumstances.

Furthermore, if the Declaration of Trust includes terms and plans regarding the way the property is held, its sale method, the restricted actions, or if it transfers the property's legal title, it must be created and executed as a deed.

Such formal legal documents require accurate wording and need to be signed and witnessed before execution. A solicitor can guarantee that the document is legally robust and accurate.

Engaging a solicitor who can provide advice on the arrangements proposed in the Declaration of Trust can also be a sensible step, potentially saving a sum considerably larger than the legal fees. For instance, a solicitor can advise whether the Declaration of Trust will infringe upon the rights of any lender with an interest in the property and can secure the lender's consent if needed.