1st February 2023
Almost one in two first-time buyers receive some financial assistance from their parents, but cash gifts or mortgage support are not the only ways to help the next generation. If you are asset rich and own land, vacant buildings or a second home, transferring property to a child is another option.
‘People sometimes have a separate outbuilding, such as a gite or annex, which they would like to gift. Alternatively, the subdivision of a farm or large garden could provide the site for a child to build their own home,’ says Rachel Silvester, head of residential property at Myers & Co Solicitors. ‘However, it is important to consider your own needs, and how these may change over time. Transferring property to a child can also raise different issues to a traditional conventional transaction, so it is important to get the right professional advice especially on the tax issues.’
The administrative process of transferring property to an adult child is like any other transfer. You, and any other legal co-owner of the property, will need to complete a deed of transfer. This is usually quite straightforward; however, it is also necessary to complete the correct formalities at the Land Registry or the legal title will not pass. Failing to do this could cause problems much later for the administrators of your estate and for your child.
You may not need all the searches and enquiries you would on a regular transaction. After all, this is a property you already know well, but you should discuss your plans with your solicitor at an early stage. A quick review of your title means you can address any concerns before passing your property on. If this is not possible in the time frame, at least your children will know about any issues and what they can do. For example, if you intend to transfer surplus garden land so your child can build on it, it is important to know of any legal restrictions which could affect this.
If your property is subject to a mortgage, then your lender will usually require you to pay it off before any transfer, although there may be exceptions. For example, if the transfer is only of part of the land mortgaged, then they may agree to release that part. In any case, speak to your lender and discuss the proposed arrangement with your solicitor early on. They will need to ensure the lender’s requirements are satisfied, and the charge over the transferred land released.
It is not unusual for two or more people to be joint owners, and there should be no difficulty transferring property to more than one adult child. However, this can often be more complicated.
For example, will you retain any interest in the property? Should your children share in any future profits from rent or the property’s sale, equally or in defined shares? If one of them dies, should their share pass to their beneficiary or should the survivors own the whole? The answers will determine whether you transfer the property to them as joint tenants or tenants in common, and the need for any additional provisions. This, in turn, will determine how they can deal with the property in the future.
Co-ownership is possible through a trust, and our solicitors can advise on the appropriate legal structure to reflect the intended relationship between the new owners. Your children may mutually agree to change the arrangement later. However, clarity at the outset can avoid confusion and head off disputes, and your solicitor can incorporate a declaration of trust in the transfer, reflecting your intentions and setting out the basis of ownership.
Alternatively, you could transfer the property to a limited company with your children holding shares reflecting their beneficial interest. There are tax implications and an additional administrative burden, which we can discuss with you.
If your child is under 18, you cannot transfer property to them directly as legally a minor cannot own land. Instead, you will need to use a trust. The most common arrangement is for two trustees to hold the legal estate on a bare trust on the child’s behalf. The trustees’ names will appear as the registered owners at the Land Registry, but your solicitor should protect the child’s interest by applying for an appropriate restriction. Under this arrangement, the child has the right to become the legal owner, with full power over the property, when they turn 18.
Other arrangements are also possible, for example, if you do not want your child to have full control when they reach 18, or if your child is vulnerable and requires additional safeguards.
Separating a property or adding a development project will also be complex, particularly as this is likely to require planning permission and specialist design input. So, it is easy to overlook the legal basis of ownership, which would be a mistake.
Informal arrangements may work well initially, but a more formal approach avoids problems later. For example, your home should retain adequate rights for access and services over the part being transferred. You may also want to include restrictions on its use, such as preventing further development if your child sells up and moves away. Any prospective purchaser or lender will want reassurance there are no outstanding legal issues. Failing to complete a formal transfer and register it in a timely manner could result in delay, or even scupper future transactions.
Transferring property to your children, or grandchildren, can be a tax efficient way of passing on assets; but it can also be something of a minefield.
It is very important to discuss your plans with your tax advisor alongside your solicitor as early as possible to avoid problems later.
Every family is unique, and the suitability of any arrangement will depend on your circumstances and those of your offspring. Discussing your plans with a solicitor who fully understands both the legal aspects and your personal situation can help you make the right choices.
For further information, please contact Rachel Silvester in the residential property team on 01782 525016 or email firstname.lastname@example.org.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.