In most cases, the beneficial and legal owners of a property are one and the same, but they can be separate individuals through a “trust agreement”. Simply put, a trust agreement is a legal tool to separate the legal and beneficial owners of the property.
What are “legal owners”?
The legal owners are the persons named in the deed/transfer when the property is transferred and registered with the land registry. If there is a mortgage taken out for the transaction, it would be under the legal owner’s name.
What are “beneficial owners”?
The beneficial owners are persons who receive the profits from the property, whether that be rents or funds from the sale of the property.
Why separate legal and beneficial owners?
On occasion, a property may have separate legal and beneficial owners.
For example, a member of the family may want to ensure they are entitled to the proceeds of the property, but don’t want to be named in the mortgage. This can occur for various reasons.
Perhaps they don’t qualify for a mortgage, or their inclusion would lead to adverse effects with respect to the mortgage. In other cases, an individual may want to ensure that their common-law partner would be entitled to the proceeds of a property he/she purchased prior to their relationship.
What are some important facts to consider with respect to a trust agreement?
A trust agreement can be drafted by a real estate lawyer, but on most occasions, you may need to retain a separate lawyer then the lawyer who handled your transaction. Reason being is that most real estate lawyers who close your property transaction also represent the lender/bank in the transaction. This can put the lawyer in conflict since a trust agreement may be detrimental to the lender’s claims to the property.
A trust agreement does not override any family law statutory obligations. This means that if the legal owner is liable for any spousal/child support or any other family law obligations, they have the right-of-way to the proceeds of the property, no matter who the beneficial owner is.
Lastly is whether the property is jointly owned or through tenants-in-common. If the property is jointly owned, the trust agreement must be accepted and signed by all joint tenants. However if it is owned by tenants-in-common, an owner can form a trust agreement outlining the terms specifically for his/her share of the property.1