A reflection on how joint mortgages, suretyship, and silence have finally met their reckoning — and what it means for those of us still in the trenches
There are cases you read. And then there are cases that become part of your blood.
Years ago, as a paralegal, I had the rare privilege of training under Mr Desmond Banks (a formidable conveyancer of the old school and, as it happens, one of the solicitors involved in Royal Bank of Scotland v Etridge ). Though he would never have claimed authorship of the principles that emerged, his involvement in that case taught me to see property law not as a question of forms and funds, but of people — and the power structures behind their signatures.
The Etridge decision was the House of Lords’ response to a simple problem: what happens when someone signs a mortgage or guarantee not out of choice, but out of pressure? What duty does a lender have to ensure that consent is real — not just on paper, but in substance?
The answer — then and now — is this: where the lender is put on inquiry (i.e. where the structure of the transaction means the lender must take steps to ensure the borrower is properly advised and acting freely) that one party may be entering the transaction as a surety, they must take reasonable steps to ensure the borrower receives independent legal advice. It’s not a formality. It’s a safety mechanism. It is — as Lady Simler recently affirmed — “no more than is reasonably to be expected of a creditor who is taking a guarantee from an individual”.
We’ve lived with this principle for over two decades. But in the years since Etridge, its application has been steadily watered down — especially in cases involving joint mortgages. Lenders and courts alike came to assume that if both names were on the mortgage deed, and the purpose looked broadly mutual, then the “Etridge Protocol” was not needed.
As the Supreme Court has now made clear in Waller-Edwards v One Savings Bank Plc [2025] UKSC 22, that was a dangerous assumption.
The Case: Waller-Edwards and the Hidden Surety
The facts were tragically common. Ms Waller-Edwards entered a relationship with a property developer, Mr Bishop. She had a mortgage-free home and capital; he had debts and a project. They jointly owned a property. In 2013, they remortgaged it through One Savings Bank for £384,000.
What wasn’t highlighted in the usual summaries was this: £39,500 of that loan was used to repay Mr Bishop’s personal car finance and credit cards. Not joint debts. Not household improvements. Just his.
The couple later separated. Arrears followed. The bank brought possession proceedings. And Ms Waller-Edwards argued — as any good solicitor would have anticipated — that her agreement to the mortgage had been procured by undue influence.
Three courts dismissed her. They found, as courts have often found, that this was “joint borrowing,” and Etridge did not apply.
Lady Simler and the Supreme Court disagreed.
The Judgment: A Bright Line in the sand
Lady Simler’s judgment cuts through the ambiguity that has clouded this area for too long. Where a joint mortgage contains a non-trivial element of borrowing used to repay one party’s personal debts, it is to be treated as a surety transaction.
The legal consequence? The lender, and must take the steps set out in Etridge — or risk the transaction being set aside where there is such a hybrid loan/mortgage.
Crucially, the Court rejected the idea that such cases should be assessed through a flexible, fact-sensitive lens. Instead, it drew a clear structural distinction: if a borrower assumes liability for a loan, or part of it, which primarily benefits the other party, then the lender must treat that borrower as a surety — regardless of how the parties may appear to divide or share the benefit.
It is not a question of commercial balance or intention. It is about recognising when one borrower takes on a legal responsibility for which they gain no direct financial advantage — and ensuring they do so freely and properly advised.
In short: where the paperwork discloses such a imbalance, the Etridge steps must be followed.
Implications for Conveyancers
Those of us advising on, or dealing with, property finance — particularly where couples, family members, or cohabitants are involved — may now need to adjust our lens.
The working assumption must be this: if a joint mortgage includes the repayment of one party’s individual debts (or other similar one-sided benefits), the transaction is a hybrid, and the lender is on inquiry.
This carries real consequences:
- Independent legal advice may be needed for the non-benefitting party — even where the lender is silent.
- Acting for both borrowers may no longer be appropriate. Where benefit is unequal, a conflict arises.
- Lender clients must be advised when a surety element is apparent — especially where source-of-funds or redemption statements reveal it. If the lender doesn’t appear to take an interest, record that clearly on file
And for those of us supervising younger colleagues, now is the time to ensure that our teams are trained to identify these warning signs — not just in hindsight, but before contracts are exchanged.
Final Thoughts
Waller-Edwards reminds us that what looks routine may be anything but. Conveyancing is not a neutral act. It is the legal execution of deeply personal decisions — often made within unequal dynamics.
Back then, under Mr Banks’ watchful eye, I learned that influence doesn’t always come with shouting. Sometimes it comes with silence — and a signature. Our job, then as now, is to see what isn’t being said.
This case makes that duty clearer — and firmer. And it leaves no doubt about what happens when we fail to act:
The charge won’t just bite the borrower. It may well bite the conveyancer too.
Contact our Residential Property team
For more information about Bishop & Sewell’s residential property services please contact Charlie Davidson Senior Associate in the firm’s Residential Property team: cdavidson@bishopandsewell.co.uk or follow Charlie on LinkedIn.
The above is accurate as at 28 May 2025. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
