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Statutory Instruments to read by the pool

By J

Apparently Dan Brown (he of “The Da Vinci Code” nonsense) is bringing out a new book shortly. I can’t imagine why anyone would want to read it. Especially given that there are (just this week!) three relevant statutory instruments to consider. Ideal poolside reading if I ever saw it.

The first two are the Housing (Shared Ownership Leases) (Exclusion from Leasehold Reform Act 1967) (England) Regulations 2009 and the Housing (Right to Enfranchise) (Designated Protected Areas) (England) Order 2009.

These two have to be considered together as they relate to enfranchisement and shared ownership leases. I’d suggest having a copy of the Leasehold Reform Act 1967 (in its original form – and with all the amendments) to hand just to add to your reading pleasure. The advantage of having all that paper to hand is that you’ll be able to use it to keep the sun off you afterwards.

Shared ownership leases – as we all know – usually provide for the tenant to acquire an initial interest in the property and then to purchase the remainder over a period of time.

Of course, it may be possible for someone to be a “shared ownership” tenant and, at the same time, be entitled to exercise a right to enfranchise under the Leasehold Reform Act 1967. That could mean that they can acquire the freehold of their house at – potentially – a much lower price.

Paragraph 3A of Schedule 4A of the 1967 Act was recently inserted by s.301 Housing and Regeneration Act 2008 so as exclude certain shared ownership leases granted by any landlord in certain prescribed conditions. The 2009 Regulations set out those conditions.

Paragraph 4A of Schedule 4A of the 1967 Act was likewise inserted by s.302, 2008 Act. It provides that certain areas of England and Wales may be treated as “protected areas” where houses (or types of houses) can be offered for sale on shared ownership leases and the enfranchisement provisions of the 1967 Act. The 2009 Order gives the (lengthy) list of areas where the right to enfranchise is now excluded in respect of shared ownership leases.

It is important to remember that these provisions apply only to the 1967 Act and NOT to enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993. This means – in broad terms – that the exclusions relate to shared ownership leases for houses and not for flats.

Finally there is the Housing and Regeneration Act 2008 (Commencement No. 6 and Transitional and Savings Provisions) Order 2009. The effect of this is, as of September 7, 2009:

(a) s.114, 2008 Act is in force. This permits the Secretary of State to inter alia, make local housing authorities, county councils, TMOs and ALMOs eligible for registration with (and supervision by) the TSA. This does not mean that the Secretary of State will exercise this power (since there is still a consultation on the same open), merely that he may do so in the future;

(b) s.300, 2008 Act is in force, which repeals s.1(1)(a) 1967 Act (see above). This provided that only houses at a low rent were capable of being enfranchised under the 1967 Act (see above). Over the years that provision had gradually been relaxed and is now killed off in the interests of legal certainty;

(c) ss.301 and 302, 2008 Act are in force. They’re discussed above;

(d) s.316, 2008 Act is in force, which will extend the range of bodies able to provide finance in connection with the Right to Buy;

(e) various “tidying up” repeals and revocations will also be commenced.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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