What is a Statutory Declaration?
A Statutory Declaration is a legal document whereby a person solemnly swears a statement (or statements) to be true. They are governed by the Statutory Declarations Act 1835.
A Statutory Declaration must be signed in the presence of an authorized person, i.e., a Solicitor, a Commissioner for Oaths, a Notary, or a Magistrate. They are most typically used to affirm the truthfulness of personal information such as identity, residency, etc. However, they are also a key element in several residential conveyancing transactions.
How are Statutory Declarations are used in residential conveyancing?
Rights of Way/Access:
One of the most common circumstances in which a Statutory Declaration is required when selling a residential property is to declare the use of land.
As an example, if a property benefits from an accessway at the rear, which is used by the seller in accordance with the enjoyment of the property and without any objection, but the
Land Registry deeds for the property fail to grant express rights of way over said accessway. In this event, the seller would be required to sign a Statutory Declaration affirming the truthfulness of their uninterrupted use of the accessway.
Adverse Possession
Another use of Statutory Declarations in residential conveyancing is for adverse possession applications. Adverse possession applications are required when a parcel of land that does NOT form part of the legal title has been used solely for a period of time without objection.
A Statutory Declaration is prepared, approved and signed by the seller to affirm their use of the land in question. The Declaration would then be submitted to the Land Registry to support the adverse possession application. The key to a successful application would be a Statutory Declaration that establishes that the land has been used with the following;
- Nec vi (without force)
- Nec clam (without secrecy)
- Nec precario (without permission).
Statutory Declarations hold significant weight in supporting applications to register rights of way or claim possession of land. They are also often paired with indemnity insurance in residential conveyancing transactions to limit the risk to buyers and lenders even further.
How are they signed?
To be a valid and enforceable Statutory Declaration, it must be signed in the presence of an authorized person who is impartial to the transaction that it relates to. Within a residential conveyancing transaction, it would not be possible for it to be sworn by the acting solicitor, nor the buyers appointed solicitor. If it was to be signed by someone who was NOT impartial, this could result in the declaration being invalid and therefore unenforceable.
Are they serious?
In a nutshell, yes! Any person who makes a Statutory Declaration which to their knowledge is false or misleading in any respect shall be guilty of an offence and may be sentenced to a term of imprisonment for up to two years or a fine (or both!) under the Perjury Act 1911.
If you have any queries regarding the swearing or preparation of Statutory Declarations, speak with us today on 01706 525053/01706 818111 or alternatively, use the contact form on our website.
Sophie Holt is a paralegal in our Residential Conveyancing department. For more information, please contact her on 01706 525053 or email her at Sophie.holt@lancslaw.co.uk
