What is an occupier waiver form?
Q: I'm buying a property from a couple who are getting divorced. The wife has moved out into rented and the soon to be ex-husband has moved in. My estate agent claims this is nothing to worry about as the husband has signed an occupier waiver form. What is this and do I need to worry?
An occupier waiver form is used by a lender when granting a mortgage on the property. It has to be signed by anyone over the age of 17 who is to live at the property but not be on the mortgage. Should the borrowers default on the mortgage, the waiver means that the lender may repossess the property and evict all the occupants.
I have not heard of it used in this context and I doubt it would be legally binding. Should the matter proceed, your buyer’s solicitor would ask that both husband and wife sign the contract and agree to give vacant possession on completion.
When a couple divorce, there is usually a Court Order or Consent Order which deals with the matrimonial assets including property. Until this is granted, either party can occupy the matrimonial home (and refuse to sell or move out). Sometimes, if one of the couple are not actually on the deeds, they may register at the Land Registry a Matrimonial Rights Notice – which would preclude a sale without their matrimonial interest in the property being settled.
I would say that the risk to the buyer is that the seller refuses to proceed with the sale – this of course is always a risk as everything up to the point of exchange is not legally binding. You could obtain a copy of the Official Copy from the Land Registry relating to the property and this would show if there were any matrimonial notices or cautions (thus indicating perhaps that the property was subject to ongoing dispute).
Answered by Sharon Buthlay, CMS
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