Deed of consent (consent to mortgage): do I have to sign it?

One document, several names

Lenders use different names for the same thing: deed of consent, consent to mortgage, occupier’s consent form, occupier’s waiver or deed of postponement. Some combine it with a charge as a “deed of consent and charge”. Whatever it’s called, the effect is the same: you agree that the lender’s mortgage comes before any right you have to live in the property. For the basics, see what an occupier’s consent form is.

Why you’ve been asked

Someone living in a property can have rights in it even if they aren’t on the title, for example because they paid towards the purchase or the mortgage. Since Williams & Glyn’s Bank v Boland (1980), those rights can bind a lender if the person is in actual occupation. A spouse or civil partner of the owner also has “home rights” to live there. A lender doesn’t want to repossess and find someone with a right to stay, so it asks every adult who will live there, other than the borrowers, to sign.

That usually means a partner who isn’t on the mortgage, adult children, parents or other relatives living with the borrower. Each lender sets its own rules on who must sign, the age (usually 17 or 18 and over) and any exceptions.

What happens if I don’t sign?

You can’t be made to sign. But if you don’t, the lender will usually refuse to release the mortgage money, so a purchase or remortgage can’t complete. You might be asked to move out before completion instead, though lenders treat that carefully. If you’re unsure, say so early: a late refusal can cost the buyer their purchase.

Do I have to sign if…

• I’m a student living away from home? Some lenders don’t require it. Check with the lender or the borrower’s conveyancer.
• I’m a tenant in a buy-to-let? Usually not, if the tenancy meets the lender’s conditions.
• I’m the buyer’s parent on a JBSP mortgage? If you’re a borrower, you sign the mortgage itself, not a consent form. Some lenders use a JBSP-specific deed of consent for an occupying parent.
• I’m moving in after completion? The lender may still ask, if it’s told you’ll be living there.

What signing does, and doesn’t, do

It does: put the lender first. If the mortgage isn’t paid and the lender repossesses, you wouldn’t be able to rely on your rights to stay.

It doesn’t:

• make you liable to pay the mortgage
• make you an owner, or give you a share
• cancel any share you have as against the owner. Between the two of you, an agreed share still counts; it just ranks behind the lender.

If you’ve put money in

This is the main thing to deal with before signing. If you’ve contributed to the deposit, the purchase price or the mortgage, agree with the owner how that money is treated and record it, usually in a deed of trust or a loan agreement. Otherwise you could find it hard to prove later. Note that a lender may refuse to lend if a non-borrower has an ownership share, so this needs raising with the conveyancer early.

Lender forms

Barclays, Halifax, NatWest, Nationwide and other lenders each have their own consent form and their own ILA certificate wording. The solicitor advising you uses the lender’s form, not a generic one, and the certificate has to match it exactly or the lender will send it back.

Why the lender wants a solicitor’s advice

Most lenders want the occupier advised by a solicitor who isn’t acting for the borrower, so it’s clear you understood the form and weren’t pressured into signing. The solicitor explains the form, checks you’re signing freely and signs the certificate. It’s usually done by video call, often the same day. See independent legal advice for an occupier’s consent form.