Common reasons to change it
- One of you paid a large lump sum off the mortgage
- One of you paid for an extension or a new kitchen
- You agreed new shares after a change in income
- A child or new partner is now part of the picture
- You want to change the notice period or buyout terms
If your declaration already deals with the change, you may not need to do anything. A good declaration says what happens to overpayments and improvements, and many people find it already covers what they're worried about.
How to do it
A change to who owns what share has to be in signed writing. That comes from section 53(1)(c) of the Law of Property Act 1925. In practice there are two ways:
The simplest is a new declaration of trust that says it replaces the earlier one. You end up with one clean document that sets out everything.
The alternative is a deed of variation, which changes only certain clauses of the original. It works, but you then have two documents to read together, and that's where mistakes creep in.
Either way, sign it as a deed in front of a witness, the same as the original, and keep both documents together.
What one owner can do alone
Very little. Neither of you can change the shares, the split or the terms without the other agreeing. The one exception is changing from joint tenants to tenants in common, which one owner can do alone by written notice. That only makes your shares equal, though.
If you can't agree a change, the existing declaration stands. If you can't agree on selling either, the court can decide under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, and it will give effect to what you signed.
Tax to check
If one of you pays the other money, or takes on more of the mortgage, in exchange for a bigger share, that can count as buying a share. Stamp Duty Land Tax (Land Transaction Tax in Wales) may then be due if the amount is over the threshold. A change with nothing paid either way usually has no Stamp Duty. Check GOV.UK, or ask an adviser, before you sign.
Sources
- Law of Property Act 1925, section 53
- Law of Property Act 1925, section 36
- Trusts of Land and Appointment of Trustees Act 1996, section 14
- GOV.UK: Stamp Duty Land Tax residential rates