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Trust Deeds in Scotland - How do they affect property assets?

One of the first questions usually asked when searching for advice on Trust Deeds in Scotland is “will the property I live in be affected?” In particular homeowners want to know “will I lose my home?” You may have spent decades paying a mortgage and keeping your home in good repair only to see one financial blip effectively threaten everything you’ve worked so hard for. Alternatively you may be living in rented accommodation and have built up a good relationship with your landlord – how will they react if they find out you’ve been obtaining advice on Trust Deeds in Scotland?

Hopefully this article will answer some of the most common questions about how Trust Deeds affect property assets, both yours and other people’s.

I live in rented accommodation  – does the landlord need to know if I enter into an arrangement involving Trust Deeds in Scotland?

Landlords do not have to know anything about their tenants arranging or seeking advice on Trust Deeds in Scotland and you are not obliged to tell them, but be aware that if you move to another property and a credit check is done (some rental agencies insist on one for all tenants), you will almost certainly not pass.
I live with my parents – is their property be taken into account when arranging Trust Deeds in Scotland?

Not at all. The assets of others are only taken into account in the Trust Deed arrangement if they agree to it. There are no automatic rights over the assets of others you live with - the Trust Deed is based on your assets only unless others volunteer to help you.

What choices does a homeowner have when entering into an arrangement involving Trust Deeds in Scotland?

With unprotected Trust Deeds in Scotland, if you are a homeowner you do not have to transfer your property to your Trustee and can request it is not part of the agreement with your creditors. However, your creditors may not like this, especially if you have equity in your property that could be released to pay off your debt, and could refuse to agree to the Trust Deed. They can then pursue you for the money you owe and petition for your sequestration.

Once Trust Deeds in Scotland achieve the status of being protected (a procedure your Trustee will take care of), your creditors cannot chase you for money and must deal only with your Trustee. However, you have to transfer your property to your Trustee who will decide what action will be taken with it to best pay your creditors.

How does a trustee use a property to pay creditors?

Your Trustee may have a policy of having property valued at the beginning of any Trust Deeds in Scotland they arrange, and will then propose a sum of equity be paid at the end of your Trust Deed. This sum is based on a mortgage redemption figure which your bank provides. When your Trust Deed finishes, you could remortgage or sell your property to obtain the money owed or alternatively some Trustees allow additional payment periods to cover this sum. They may also accept a cash payment from a family member.

What if I am not the sole owner of the property?

If property is jointly owned, a Trustee will need the permission of any other owners as well as those who have rights to live in the property before arranging any Trust Deeds in Scotland. They have the power to force the sale through the courts if your co-owner(s) refuse. Once a ‘division and sale’ has been granted, the Trustee will sell the property and give the other owner(s) their share of the proceeds. You share will be used to pay your creditors.

What if I have a second property? Will I have to sell that?

Not necessarily. Whether or not your second property is in the UK or abroad, if there is a certain level of equity present your creditors may require it to be released at the end of the Trust Deed to pay them. 

Do I still have to transfer the property to the Trustee if there is little of no equity in the property I own?

If you are in negative equity or the equity you do have is too little to be released (usually less than £5,000, which would be swallowed up in selling fees), your Trustee will still require the transfer of the property to their administration. Sometimes property is worth more at end of Trust Deeds in Scotland than at the beginning, and your Trustee could have a valuation performed at the end of the term to calculate if some equity can then be released. However, it is also possible to buy out the Trustee’s interest in the property with a one-off payment, which can be paid by you or a third party. It is also permitted to add this sum into Trust Deeds in Scotland for payment along with other unsecured debts.

Can the Trustee come back and demand any equity increase be released if they have been bought out of their interest?

Your property is fully protected once the Trustee has been bought out and they cannot later request equity be released if it has increased in value.

Is it true I could get rid of mortgage debt and still stay in the property after using Trust Deeds in Scotland?

As nice as this sounds, no! Only unsecured debts may be included in Trust Deeds in Scotland. Secured debt and mortgage debt is excluded because if you default secured creditors can recover the money lent to you in the form of the asset they have a charge on.

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