Conveyancing requirements regarding cohabitants: deeds of confirmation
The committee has been asked what the correct position is as regards cohabitants executing deeds of waiver or deeds of confirmation in cases where they are not on title.
A cohabitant who has no equity in a property should make a family law declaration to this effect for a conveyancing transaction, including a mortgage transaction.
However, where a cohabitant who is not on title (whether a qualified cohabitant or not) has equity in a property, or if there is a doubt as to whether or not the cohabitant has such equity, the family law declaration should reflect this fact and the cohabitant should execute a deed of confirmation in favour of either the purchaser or the mortgagee as appropriate.
It should be noted that, in circumstances where it is established that a cohabitant has equity in a property, it is not possible for them to ‘waive’ their interest: the appropriate deed is a deed of confirmation, as above.
The question arises as to how a solicitor can be certain that an equitable interest has not accrued in any particular situation and that, therefore, a deed of confirmation is not necessary. The view of the committee is that if a cohabitant cannot make a declaration that he/she has no equitable interest, he/she should sign a deed of confirmation. Where a deed of confirmation is to be signed by a cohabitant, he/she should be advised to obtain independent legal advice.
Even in a case where it is established that a cohabitant has no equitable interest, a family law declaration is required in any case in order to exclude the possibility of proceedings under the .