Equity release: top 10 legal questions

Published by Rebecca Atkinson on 15 May 2009.
Last updated on 23 August 2011

Measuring tape

The Equity Release Solicitors Alliance (ERSA), a group of established law firms specialising in equity release, was established to promote the importance of specialist legal advice when considering equity release products. It has committed to a charter guaranteeing it will provide the best legal advice to consumers undertaking such transactions.

1. Why are interest rates so high in equity release?
Many people expect the interest rates in equity release plans to follow the same trend as normal residential mortgages. However, this is not the case because of the long-term nature of the mortgage. 

Equity release plans are only repayable on the death of the homeowner or at point where they permanantly vacate the property. Clearly, the lender has no way of knowing when this will be and therefore has to be able to fund products on a long-term basis. 

Accordingly, it is not possible to follow the Bank of England base rate, as many other mortgages do. That said, rates could come down as more lenders enter the market and competition for business increases.

2. What is SHIP?
SHIP stands for Safe Home Income Plans and is a trade body of equity release providers set up in 1991 to promote and secure the reputation of equity release in the eyes of the public. Membership of SHIP is voluntary - but those providers who sign up to SHIP must comply with the SHIP code and give certain guarantees to their equity release borrowers.

All borrowers taking a SHIP approved equity release plan must obtain advice from an independent qualified legal advisor prior to completing the equity release plan. This ensures that the borrower fully understands the legal implications of the equity release prior to completion.

3.  Will I be able to live in my home for the rest of my life?
Yes. All lenders belonging to SHIP, which accounts for about 90% of the equity release marketplace, guarantee that you can remain living in your property for as long as you want to or need to.

If you decide to move in to long-term care or live with relatives, your property would need to be sold at that stage to allow the loan to be repaid. However, it may also be possible to arrange for care in your home, subject to the lender's criteria at that time.

4. What happens if I want to move house in the future?

The SHIP guarantee provides that you are allowed to remain in your property for life, provided the property remains your main residence, so there is no compulsion on you to move, unless you wish to.

However, if you would like to move, for instance to a smaller property, then the SHIP guarantee also provides that you have the right to move your plan to another suitable property without any financial penalty, so, if you are moving and buying another property and transferring the plan, then you can do so without penalty. 

Please note that if you are moving into a less expensive property, you may have to pay back part of the outstanding mortgage.

If you want to move and sell the property but not transfer the plan to that other property, for instance because you are moving in with family or into a residential home, then the mortgage will have to be paid off in full. In those circumstances, you should always check the terms and conditions of your particular plan, to see if there are any payments due to the lender for early redemption.

This also applies to a partial redemption, referred to in the previous paragraph.

5. Why should I use a specialist lawyer?
Equity release is a specialised area where it is important that you receive good quality legal advice from a qualified lawyer who has experience within equity release. This ensures that you receive full and balanced independent advice while benefiting from competitive fees, which can be offered due to the efficient process they are able to offer.
A specialist has full knowledge of equity release products from a legal perspective and streamlined systems which facilitate for a speedy completion.

6. Will my name still appear on the title deeds as the owner of the house?

Yes - If you accept a lifetime mortgage offer then you will continue to own your property. The lifetime mortgage lender will place a charge on the property title as a means of protecting their financial interest.

A home reversion plan is slightly different as it will involve selling part, or all, of your home to a private reversion company. For example, if you sell 100% of your home to a reversion company, then they will become the new legal owners and be named on the property title.
7. What happens if the lender collapses?

If the lender collapses before the loan is completed, your financial adviser will try to find an alternative lender. If the lender collapses after the loan is made your equity release plan will, inevitably, be passed on to a new organisation.

That new organisation will be bound by the terms and conditions of the original loan and will not, for example, be able to force you to repay the loan other than in the same circumstances that applied to the original loan.
8. Is there a chance that my family might inherit any debt?

As a general rule, the debts of a deceased person are paid from any money or other assets they leave behind - surviving family members would usually inherit the net amount after payment of all debts.

However, with certain types of equity release products - those that offer a ‘no negative equity’ guarantee - the equity release provider agrees not to claim against any asset other than the property from which the equity was released.

All SHIP plans carry such a no negative equity guarantee so their customers will never owe more than the value of their home and no debt will ever be left to the estate.
9. Will equity release affect my benefits or tax position?

You should always discuss your particular circumstances with a specialist Independent Financial Advisor, as everybody’s circumstances are slightly different and individual to them, but, as a general rule, the position is:

* Inheritance tax

If you take out a plan on your house, then the equity (i.e the value left in that property) is reduced by the amount of the plan taken out and, consequently, the value of all your assets, which will be left on death is reduced accordingly.

Therefore, this also reduces any inheritance tax that would otherwise be payable. Currently, the value of a persons estate is only subject to inheritance tax, if it exceeds £312,000.00.

* Pension and state benefits

It depends on whether your benefits are means tested or not as to whether taking out a plan could affect those benefits. For instance, an equity release mortgage or reversion plan, will not affect your state pension or any income from an occupational pension scheme or personal pension. 

On the other hand, pension credits and other state benefits are means tested and may be affected if your income or savings will rise above the limits specified by the government, as a result of your equity release plan.

* Stamp duty

Assuming the equity release plan is not being taken out to assist in a purchase of a house, flat or transfer of ownership, then there will be no stamp duty to pay. This is the position as at April 2009, although you will appreciate that tax rules do change from time to time, for instance at the Budget.

10. Do I have to change my will if I enter into an equity release?

An equity release plan will have a financial impact on the value of your estate following your death. The amount of any gift, legacy or donations you intend to make could be affected and it would therefore be prudent to take your equity release plan into account when writing or redrafting your will.

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i do not own a property.i am

i do not own a property.i am 58 years old and I live on my own in a rented flat. I can't get a mortgage.i am interested In getting a lifetime mortgage. I do not have any children so I don't care if it is not mine when I die. I am so fed up with having to ask permission if I even want to paint the walls a different colour to boring magnolia. Please can you help me or point me in the right direction if you can't. Thank you.

I am trying to release money

I am trying to release money from our property to repay a second charge on it which has now become the first charge after we paid off our mortgage.

The other issue we have is that we live in a areaof natural beauty and the council area in which we live in have a three year clause on the property that in the event if us moving it has rove sold to someone who has lived and worked in fir the past three years.

We neither intend to move hence the request for equity release. We have lived here fir the last 29 years and intend to stay here.

Are the any companies that can help.