Category Archives: Buying the Freehold

Information for leaseholders and freeholders about purchasing the freehold of a property through collective enfranchisement.

Commentary on the Housing White Paper

I recently wrote a short piece on the Housing White Paper that appeared on my other site, Leasehold Reform News.

Whilst the forthcoming election may well throw some of the government policy objectives into uncertainty in the short term, I thought it was worth posting it here. The Housing White Paper does have a few paragraphs addressing leasehold – in particular the increasingly vocal issues surrounding leasehold houses and the question of ground rents that escalate. This issue is becoming increasingly topical. In the paragraphs below I address some of the proposed solutions and look at how these might work in practice from a technical point of view.

You can read or download the full Housing White Paper.

Are we really going to be Fixing our Broken Housing Market ?

My thoughts on the main themes affecting long leasehold appear below (the details of the exact paragraphs in the consultation appear in my earlier post).

New leasehold houses and ground rents –
Stopping increasing and onerous payments on leasehold houses  

How will this be achieved in practice? Banning the creation of all leasehold houses probably won’t work as this wouldn’t help cover situations with ‘overlap’ or ‘undercut’ with adjoining property.

Perhaps leasehold ‘houses’ could be deemed to be ‘flats’ (in the legal sense) that just happen to look like houses. That would then allow the service charge legislation to apply.

There could perhaps then also be a restriction on creating any leasehold house at a ground rent.

Some of the problems of new leasehold houses have been well documented. 

See the articles below….

What are the advantages of leasehold in this sort of situation?

The need to impose maintenance obligations in shared estates remains and leasehold is an attractive solution from the legal point of view as this makes the collection of common cost contributions easier.

However, this could be achieved by the use of ‘rentcharges’ and/ or deeds of covenant on each individual transfer.

This is how the maintenance arrangements and management charge are usually dealt with in existing freehold developments with shared estate roads and other facilities.
So, would all of this need primary legislation? – The answer is a resounding ‘yes’ and therefore it would also require a significant amount of parliamentary time.

Ground rents that review at short periods and that have significant increases

The review periods for ground rents are clearly an area where the ‘consumer legislation’ could be used to some effect.

Options presumably include:-

  • Banning the creation of new ground rents in any new residential lease.
  • Restricting the frequency of reviews – perhaps to every 20 years – and then also imposing a cap or limit on the rent level that can be set.

This is contentious as it potentially will restrict freedom to contract and might have unintended consequences for shorter term Lettings with a premium.

One solution could be a ban on rents that equate to more than a certain fraction of the open market value of the property with a certain (assumed) lease term say 125 years and no rent.

Examples of the problems that can be caused by escalating ground rents ….

This would avoid the situation where homeowners end up with an unsaleable asset because of a combination of poor advice and clever drafting.

‘Whether and how to invigorate commonhold’ 

That is an interesting statement in itself.

It is often said that there are more books written about commonhold than commonhold developments and no doubt this may be true. Not making it compulsory was of course its failing.

It would be a bold political move, but legislating to make all new developments of flats commonhold could be a solution.

Anyone remember this BBC news item from 2005?

What about the valuation impact?

If commonhold were made compulsory for new builds then there could be a ‘backlash’ in valuation terms against those living with existing ground rent landlords as these assets would instantly get more valuable. Accordingly, the impact on the Enfranchisment cost for all remaining residential leaseholders would need to be considered as a point of policy.

What would a ‘two tier’ system or market look like, with some properties commonhold and others not?

Perhaps that is the biggest reason why commonhold has not taken off to date – namely that people do not like change and no developer wants to ‘go first’ when there is no incentive (or compulsion) to do so.

So, will it really happen?

The pressure of other legislative requirements may well mean that whilst the White Paper suggestions on long leasehold are very well-intentioned in my view they may not fully progress. This is likely to be because of other demands on parliamentary time from numerous quarters and not least because of other ‘small’ matters that the government currently have to deal with such as Brexit.

Section 5B of the Landlord and Tenant Act 1987 – a land of opportunity?

I hosted a talk by Gary Murphy of auctioneers ALLSOP at the recent ALEP conference on 10th October 2016.

The topics that  we were discussing was whether the fact that the tenants have served an acceptance and nomination notice under the provisions of the Landlord and Tenant Act 1987 has an impact on the to price achieved at auction. This being in a situation where the landlord has served a notice indicating a that the property will go to auction in accordance with Section 5B of the Landlord and Tenant Act 1987.

Perhaps unsurprisingly, the results of Gary’s anecdotal poll of auction clients reveals that large number will not bid in such a situation leading to slightly depressed prices in the room.
Gary has written an article that has now appeared in the Estates Gazette (see scan below).

This caused me to wonder on two counts. Firstly, is not worth bidding on such lots as a buyer? After all, if the tenants do not proceed then you would be buying at a discount and, secondly, as tenant isn’t this a golden opportunity – after all, is if the property is sold then chances are you will be buying slightly below market value.

There are a number of Barriers to the tenants succeeding in practice – firstly, they may need to be very organized (ready to complete in 28 days) and if there are lots of flats this may be hard / impossible to achieve. Also it can be hard to motivate people when the valuation outcomes are uncertain (remember no-one has put a number on the proposed price – unlike a under section 5A of the Landlord and Tenant Act 1987) – However, in the right circumstances auction disposals following a notice under Section 5B of the Landlord and Tenant Act 1987 present a significant opportunity.


Tribunal fees for enfranchisement cases – as of 18th July 2016

Readers of this site may be aware that the government previously looked to introduce fees for applications made to the first tier tribunal for Enfranchisement matters.

There was a lot of debate about this and I and other ALEP colleagues were involved in making representations – particularly because the initial fees proposed were £2,000 per case!

Fortunately, because of the intervention the likely fees were reduced – to a much more manageable (and less deterring) £100 on application, and £200 when a hearing date is set.

This may not be the end of the story however, as it is likely that the subject will be revisited in the future at which point, government may be tempted to set fees which escalate depending on the value of the case.

We learnt yesterday from the First Tier Tribunal (FTT) that fees will be introduced with effect from 18th July 2016 (probably). If you are involved in a case and are going to need to apply it may be worth doing so before this date to avoid the additional application fee.

Links to the relevant SI for those that are interested appear below:

Buying your freehold – the basics

This is a short video explaining the basic points to consider if you are thinking about buying your freehold. It covers:

  • whether your building will qualify or not,
  • qualifying leases
  • some other preliminary points to think about.

I hope you find it useful. If you would like to know more then by all means contact me to discuss.