I want to put this post in context:
(a) I write this post for myself and do not necessarily speak on behalf of the other NL writers.
(b) I have enormous respect for Shelter. I have friends who work there. I make regular donations to Shelter. We have lots of Shelter readers who we love and respect. The world is a better place because of Shelter.
(c) I also despair of the ability of “progressives” or the “left” to degenerate into in-fighting over who can be the most ideologically pure (witness the recent nonsense criticism of Jack Monroe and whether she represents the “right sort” of poverty) and sincerely hope that this post isn’t seen as part of left-wing in-fighting.
But, in their recent call for a “new generation of shared ownership” Shelter are simply wrong. As Talleyrand apparently didn’t say, C’est pire qu’un crime, c’est une faute.
In Homes for Forgotten Families, Shelter have – again – identified the urgent and pressing need for more, reasonably priced, quality accommodation to be built (for young people wanting their own home; for families to move into; for people to “downsize” etc). Likewise, they clearly demonstrate what we all know to be the case, namely that insufficient numbers of properties have been built over the last 20 years or so, with each passing day simply adding to the problem of ever increasing prices.
They are also right that the myriad of different schemes tried by governments over the years (e.g. New Build Home Buy; Key Worker Living; First Steps; Home Buy Direct, etc), have not made any meaningful contribution to solving the problems identified in the last paragraph. In all this, I entirely agree with Shelter.
Where we part company is the remedy. For Shelter, the answer to these problems is the creation of a “…major, mainstream shared ownership market…” with 600,000 such properties being created over a four year period. Shelter recognise that this would need to go hand-in-hand with other work (i.e. more building generally is needed), but, in their view, “…. shared ownership offers real hope for most of England’s low to middle income families…” and they seek to make it a key part of the housing debate ahead of the 2015 General Election.
Regardless of what one thinks politically about this sort of statement, as a lawyer, (whether acting for landlords or tenants), shared ownership is a disaster area and, without substantial legal reform, is not something that I could ever imaging advising an occupier to take-up (at least, not without having given them very clear advice about the dangers involved and making sure I had a detailed note of that advice).
There are three main problems with shared ownership as it stands. First, it is – if not missold – then at least misunderstood. The occupier puts down a proportion of the purchase price (between 25% and 75%) and then has an option to purchase the rest over time. This is not “ownership” in any legal sense. Indeed, as we know from Midland Heart v Richardson [2008] L. & T.R. 31 (see our note here), all you have is an assured tenancy (albeit for a long term, i.e. 99 or 125 years) with an option to purchase. And, because it is an assured tenancy, you are vulnerable to possession proceedings in the usual way. Including Ground 8 (i.e. mandatory possession order). If a possession order is made, then you lose your capital payment. And your home. Quite why anyone would sign up for this is beyond me. Why Shelter would recommend it further baffles me. There is nothing shared because there is no ownership by the tenant. The landlord owns it all!
Secondly, despite (so you think) only “owning” (sic) a percentage of the property, you are usually liable for 100% of all service charge costs. So, if a new roof is needed, you pay 100% of your share. Your “co-owner” (sic) pays nothing. And, if you don’t pay your service charges, you’re liable to lose your property and, again, your capital deposit (see, e.g. here).
Thirdly, there are usually significant restrictions on your use of the property; you cannot usually, for example, sub-let (at least, not without permission). There may be restrictions about who you can sell to (e.g. only other key workers), see here for examples.
There may be other objections, certainly, there has been recent comment on the problem of shared ownership which repays reading (see here and here).
Now, you would know nothing of these problems from reading the Shelter report. There is no mention of Richardson (an astonishing oversight and, in Twitter exchanges once the report was published, very few Shelter people seemed to have ever heard of Richardson) or of the substantial legislative reform that would be needed to make shared ownership an attractive proposition (having discussed this, albeit briefly, with some of the other NL writers, I think you’d probable need to create a new form of estate, which is an enormous and far reaching reform).
In fairness to Shelter, they do say that there needs to be reform, but give no details of what problems they are aware of and what those reforms might be. That, again, is a striking oversight. The Shelter brand is a trusted one, so it matters when they support policies. It adds to public awareness and trust in those policies. But shared ownership does not deserve that trust. It is a bad policy and Shelter are wrong to support it, at least in its current form.
Excellent post. Its scarey how people dont know about richardson. Shared ownership is horrific in my opinion with the worst parts of renting and buying.
Having worked at shelter there are many who know about the case its just that departments were never very good at talking to each other which may have been helpful. I fear shelter is becoming less repected for its legal expertise in persuit of popular sound bites.
I think you’re probably right – this is good politics but terrible law.
Excellent and clear post debunking the myths around the benefits of shared ownership. Good work (as always) on NL in grasping the issue. Hopefully Shelter will accept the report is an academic exercise and would only work with wholescale reform of classes of tenure. in the meantime, let’s build some more decent houses to rent out at affordable levels. It’s a major cost this country can easily afford.
As someone who has worked for both Shelter and local authorities I absolutely agree that shared ownership doesn’t work. The issues with the legal status are explained above. It also doesn’t work because the restrictions placed on who can take part mean that it is never an option for most people in housing need. Once in the property it is extremely difficult to sell and recover the invested capital, so it is not suitable for anyone who may wish to move in the future. The difficulties for anyone who has trouble with keeping up their rent and mortgage payments are increased by the complexity of their situation. I worked for two local authorities in middle-to-better-off areas in the west of England where new build shared ownership properties stood empty for extended periods of time because no-one wanted them, despite hefty competition for all other types of properties, and significantly for the medium-to-higher end rental market which you would expect to attract the potential shared ownership customers.
I am rather ashamed of Shelter for making this suggestion. Perhaps the overall aim of prompting debate and so moving the housing issue further in the spotlight will be achieved, but not without leaving a lot of us feeling that our confidence in the ‘brand’ in terms of campaigning has been weakened.
Advising shared ownership as being a realistic housing option is like sending lambs to the slaughter.
It is good politics. And easy politics – low cost and hitting the not-so-poor: it’s the kind of thing politicians love and will swoop on. Which means it’s important to caveat the opening pitch with some additional reforms to fix the tenure. There’s no point getting an easy win on something not so great.
What do you make of Mutual Home Ownership? Would your three problems also apply to this tenure?
http://www.cds.coop/about-us/mutual-home-ownership
I ask because it seems to at least put the tenant/owner in a better position, being a member of a co-op, and because the ladder mechanism is more flexible. It strikes me as a good replacement for shared ownership, something Shelter and others might do well to promote.
I didn’t know about richardson until Giles mentioned this on a previous post and in the Guardian. I work in a local authority field and have not allowed my teams to advise on shared ownership simply because it had appeared to me to be unaffordable, and I had come accross poor mathematical models that simply did not add up. Some friends I have had who have tried this route became poverty stricken in no time, and gave it up. The idea in essence makes sense, but in reality is simply a terrible scheme, I had a housing association admit to me in 2004 that the scheme didnt work, and they at the time pulled the scheme I was investigating as a homelessness officer as I felt that the client had been overstretched and thought the scheme didnt make sense.
I am pleased to see that there is something more scientifically tangible to my thoughts on this area.
On shelter, they are stuck between a rock and a hard place unlike when I worked for them in the early noughties. Most shelter schemes, more specifically now are reliant on donations, (or for L.A’s and RSL’s to part fund advisors), legal aid has been stripped, and they need to take a more political role than perhaps they once would have. Sign of the times.
My partner and I are currently in the process of buying a shared ownership flat. I have been looking at the schemes for a number of years now and it has got to that point where we need to move from out current shared flat and find a place of our own to start a family. We have looked at renting in the area we currently live in and would like to stay in ( I see no reason why we should have to move further out to find accommodation in the area we have lived in for the last 10 years). To rent a single bedroom flat of not a very good quality we are looking at around £1200 a month upwards. Two bedroom was way out our budget so did not even go there. We have found a resales shared ownership 5 min from where we currently live for just over £1000 with the current rent+service charges and mortgage on top.
Now I understand the service charges can go up as well as the rent, but that is the same as with a private landlord and I have never had a rental agreement that had a cap on the amount the rent could go up a year you either argue it out with your land lord except it or walk. In our situation we could probably save up another year or two and maybe have enough to buy some where at todays rates, but in that mean time we would be burning away £15000+ a year on rent.
Assuming we can’t for some reason keep up the payments on the flat we would know in advance and would be forced to sell if the proper went down in value we would still end up getting something out (he says). So front that point it’s a better option than renting. I think a lot of people are viewing this as a way to buy a property and although that is the general aim of the schemes I look at it from the other side as a way to pay cheaper rent and get something back when I decide to give up my lease.
On a side note I wouldn’t touch any new builds with a bargepole. The living space in the flats is terrible rooms are not rooms. Thats why we decided to look at resales anything pre-credit crunch seems to have decent room sizes anything built during or after is not worth it.
Alexis, I think the point to note is that unless you are buying 100%, you aren’t actually ‘buying a shared ownership flat’. You are at best making a downpayment on eventually buying it. In the meantime, you are a tenant but with a leaeholder’s responsibility for service charges etc.
This is not to deny that it can work for some, or be a relatively low cost tenure (for those who can find the capital). But the risks need to be known.
Aren’t the risks a function of the legal mechanism used in creating the “shares” in shared ownership? The risks identified from the Richardson judgement are relevant to shared ownership tenancy / leases that use the same form of documents. What about shared ownership arrangements where the resident obtains the freehold upon payment of the initial tranche, with the HA’s interest (right to receive rent and a defined proportion of sale proceeds) registered as a charge? Or a different form of wording of a document to make it a lease rather than an assured tenancy? Are these different mechanisms possible? If so, we shouldn’t be damning the shared ownership concept – just ensuring that we are using appropriate legal mechanisms.
Or am I missing something fundamental?
And as an aside, I dislike the prominence given to shared ownership, as I think it is politically easy, as has been noted in other comments, and distracts us from helping those in most need. But that is a wider issue than the one being considered here.
My comment above is feeling rather forlorn and ignored. Is there no merit whatsoever in my suggestion that the dangers of SO depend upon the legal arrengements used, and that the issue isn’t the SO concept itself, but how on occasions it has been implemented?
Comment welcomed!
I suspect the lack of response is because your suggested alternative model would need very careful consideration as to the problems it might encounter, not least for a landlord considering its security. Or a lender, looking at taking what would be in effect a second charge.
Yes – I think there is something attractive in the freehold/leasehold ownership, but with a charge in favour of the HA, but I’m unsure how exactly this might work in practice. I’m also unsure as to what extent the various funding streams available for shared ownership (sic) would permit this.
I totally agree about shared ownership being a dangerous scam, and have been warning people about it for literally decades. However, unlike you, J (I think I know who you are…), I am far from a Shelter fan.
When I first came across a Labour councillor (K&C) living in a subsidised HA flat while letting out four houses he owned in East London, I contacted Shelter expecting them to be as outraged as I was and help me campaign to restrict subsidised housing to those in need. Not a bit of it. Shelter thought there was nothing wrong, only me.
Since then I have found them useless on every front; stuck in the 1970s without a purpose in 2013 and paying their senior executives up to £120,000 a year. Nuff said.
I’m going to gently stop this here since (a) this isn’t a post about Shelter and how good/bad/inefficient/inept they might be; and, (b) you have a newspaper in which you can make these points :-)
I’m also not saying that Shared Ownership is always bad (although I wouldn’t touch it with a barge-pole, nor would I let my friends and family do so); it is a personal decision for individuals and their families. But it does have to be an informed decision and what seems clear to me is that most people are dangerously under-informed and ill-informed as regards how it works and the risks which can eventuate.
J
In fairness to Shelter, Robbie de Santos has blogged for Shelter that SO needs reform and asks for “… any suggestions that others may have for developing a legal structure that would safeguard shared owners’ equity in the worst case scenario of their home being repossessed”.
See: http://blog.shelter.org.uk/2013/09/shared-ownership-has-potential-needs-reform/
It might be said that this could have been released at the same time as the report, but better late than never?
Yes, I saw that yesterday and was going to write a small addendum to this post.
It might also be said that one might think that the problem could have been considered and a plan developed in the course of preparing the report. I’m not sure that ‘Anyone got any ideas’ is an encouraging response.
Pretty much what I have said since it was introduced. As to reform
1- rent reflects the repairing and SC liability of the occupant, as well as the ROI to the landlord for their share- perhaps this needs to fall under the “Rent Officer” to determine independantly if disputed
2- shared ownership becomes a joint venture, if you don’t pay then you get your %, adjusted for the change in value since purchase, back less arrears and costs.
I’d rather see the governments help for buyers cut to £150k, not £600K, weighted for urban areas and use that money to encourage RSL’s to do this.
Forgive what may be an inappropriate response to this interesting post and comment thread, but I am a member of a team of academics about to start a project looking into shared ownership. If any of your readers would like to contact me about it, then do please feel free to get in touch at d.s.cowan [at] bris.ac.uk. Please note that we can’t give advice, I’m afraid.
Profs Sue Bright, Nick Hopkins and I agree with these comments. We have done some work looking at whether the Richardson decision was correct ([2009] 73 Conv. 337) (which it was) and on finding ways of avoiding the consequences in Richardson using human rights law (see our chapter in the recently published volume of Modern Studies in Property Law (Hart, Vol 7)), but really the solution lies in legislation. To that end we’re suggesting that the Law Commission should look at shared ownership as part of its next programme of law reform – if anybody would like to support that submission (or see our earlier work on the subject) then feel free to get in contact at nickmacklam [at] gmail.com.
Stay aware from shared ownership, its is nicely packaged up to offer you a “step” on the ladder of which you will never move up unless extremely lucky. The rules and regulations of the HA will keep you trapped, you will see the HA fix up all the other properties new boilers painting the outside, fitted kitchens yet as the majority shareholder they will do nothing to your property and tell you that you are the “homeowner” whilst continuing to charge you rent that rises every year and eventually becomes level with your mortgage, this scheme is nothing but a trap to get people to lay out big deposits and the share they buy helps the HA house people in the very same properties nearby, the new builds deteriorate and they refuse to repair, or maintain it I am about to get out of it altogether and rent a property for which seems a much better simpler life unless you can afford to buy 100% stay renting and keep your sanity. Shared ownership gets more complicated once you are in it, you do not initially look at things like for example the types of people who will move into the area, how it will deteriorate especially as it looks shiny and new at first, you will be unable to rent it out should you fall into difficulties and it will take a long time to sell through the HA and not be a very attractive package on the open market. I hope people think carefully and this scam is abolished altogether, if you can’t buy a house then rent one!
Josie (and maybe even some others) may be interested in my piece on shared ownership in Coventry View http://alanlodge.wordpress.com/2013/09/19/shared-ownership-is-it-the-answer/ kindly mentioned above.
And I don’t think it is, certainly in its current state.
Thanks for this an excellent article and one that should be shown to everyone considering going down this route.
As there is no statutory power for HAs to grant shared ownership leases, perhaps I should not complain.
The Regulations cited to me were the similarly named Housing Association Shared Ownership Leases (Exclusion from Leasehold Reform Act 1967 and Rent Act 1977) Regulations 1987. I was not aware of the (similarly named) 2009 Regulations. Having viewed these, reg 5(2) appears to cover the 25 per cent share acquisitons. The regs would apply to LAs as the lease would be a long lease for purposes of s3 Leasehold Reform Act 1967.
A SO leaseholder would not have the benefit of s166 CRLA 2002, I agree. However, this appears to have been envisaged as “shared ownership” is carved out by s76 of the same Act.
There are various definitions of “long tenancy” and “shared ownership lease” in the 1967 Act, the 2002 Act and the Law of Property Act 1925 (probably elsewhere). None of them are definitive in the sense that they only apply to the interpretation of the provisions of those Acts. For the purposes of one of the Acts, the lease could be a long tenancy; for the purposes of another, it could be a shared ownership lease.
Therefore, whilst LA shared ownership is confusing, I do not think that it is disallowed.
For the record, whether I think shared ownership is an answer to a housing crisis, is another matter entirely (I think you can read between the lines here).
No, it isn’t disallowed. I just have deep problems with it as a form of tenure…
Apologies. I posted this in the wrong place. It was intended as a contination of the discussion started by Ken on 6 January 2015. I copied and pasted accordingly. Sorry!
It is OK. It worked. I’ve deleted the second version.
Thanks but it’s the first one that should have been deleted as I had intended to reply to your comment on 31/12/2017 at 5.33.
Reading the encomium for shared ownership on Inside Housing today I remembered this post and came back to refresh my memory in particular about the Richardson case.
If anyone is still following (unlikely this much later I know) I wonder what is the status of a local authority shared ownership lease. Not an assured tenancy because tenancies with an LA landlord can’t be (HA1988 sch1) but also not secure because long tenancies can’t be secure (HA1985 sch1). So presumably just a long lease governed by it’s own terms? Would that make it a better or worse proposition than HA shared ownership?
Are there any local authority shared ownerships? other than by a separate ‘special vehicle’ (which would still mean that they were an assured tenancy)?
Thanks for replying. There are probably very few purpose-built shared ownership properties with local authorities (although one authority where I worked in the nineties had dipped their toe in the water and done about 20).
But there may also be a small number kicking around from when the Right To Buy used to include a RTB on shared ownership terms (abolished by the Leasehold Reform, Housing & Urban Development Act 1993 from memory and replaced by the Rent To Mortgage scheme).
I work at a local authority which will be offering shared ownership (the council being the landlord). I agree with Ken in that the lease would be neither an assured tenancy nor a secure tenancy; it is simply a long lease. There is nothing expressly allowing nor disallowing local authorities in offering this tenure. However, in the absence of legislation expressly allowing shared ownership, it becomes a case of square pegs and round holes. This is particularly the case given that funding comes from the HCA which stipulates requirements that are applicable to housing associations, not councils.
For instance, my council wants to allow “owners” to purchase in shares greater than 25%. However, we are forced to adopt the HCA’s “fundamental clauses” on staircasing which were, of course, drafted with The Housing Association Shared Ownership Leases (Exclusion from Leasehold Reform Act 1967 and Rent Act 1977) Regulations 1987 in mind.
The government appears to want councils to offer shared ownership. Could they not say so on the statute books?
David, it is not simply a long lease. It can’t be. It will very likely be a secure tenancy.
I hope your council got some first rate legal advice because it is potentially creating a minefield for itself.
Thanks Giles. Section 79 (which is part of Part IV) of the 1985 Act defines secure tenancies and points to the exceptions in Sch 1. There, we see that a tenancy isn’t a secure tenancy if it’s a long tenancy. A long tenancy is defined at s115 (also part of Part IV). It is subsection (1)(a) under which a SO lease would fall, in my view.
The position is very different from the situation with housing associations as there are no similar provisions in the 1988 Act. For this reason, Richardson was an accident waiting to happen.
I do not foresee tenure being the questionable issue. The main problem for local authorities to understand is the necessity for, and complications which arise from, forfeiture proceedings.
Fair point, it will fall outside a secure tenancy. But that raises the question, on what basis do you have a power to grant a ‘shared ownership’ tenancy? S.140 Housing Act 1980 was repealed in 1987. If not a secure or flexible tenancy (it could be a flexible tenancy, but only if requisite notices served), or a lease under RTB, what power do you have to grant such a tenancy?
And yes, if it is not a secure or flexible tenancy, you could only rely on forfeiture – meaning a court or tribunal determining breach, then s.146 notice, then forfeiture/possession claim.
Which brings us back to my original point in that it would be nice to have local authority shared ownership leases on the statute books.
Section 140 of the 1980 Act didn’t give a power to grant a SO lease, it merely regulated the grant of one. Similarly, the 1985 didn’t give a power to grant secure tenancies; it stipulated that if certain criteria exist, the tenancy shall be a secure tenancy. Therefore, the question you pose is: on what authority may a council grant a tenancy. An interesting question, though rather academic. No doubt there is historic provision but in the alternative, I would perhaps refer to the Localism Act.
I’ve had a chance to think this through a bit after earlier hasty responses.
There is no specific statutory provision for Housing Association (or indeed private) shared ownership either. The loose definition at s.70 of Housing and Regeneration Act 2008 is probably closest, but that is not at all restricted to HAs. The rest are various statutory provisions excluding ‘shared ownership’ from this that and the other (enfranchisement, lease extensions and so on), or dealing with distinguishing SO from social tenancies.
By the way The Housing (Shared Ownership Leases) (Exclusion from Leasehold Reform Act 1967) (England) Regulations 2009 make provision for non-housing association shared ownership leases (including private ones) to be excluded from the LRA 1967. The requirements in that apply to ALL shared ownership, at least if it is to be outside the LRA 1967 – and provide for 25% increments of ownership only, hence the restriction on ‘shares’. It isn’t just the HCA model lease.
But that all said, LA ‘shared ownership’ retains many faults of shared ownership. It makes as much sense to call it a 125 year term contractual tenancy as it does a lease. I realise the ‘lease/ownership’ phrasing is important for selling the product, but it is otherwise meaningless.
I agree that it can’t be either an assured tenancy or secure tenancy, but it doesn’t simply become a straightforward ‘long lease’ for that reason. For example, Commonhold and Leasehold Reform Act s.166 doesn’t apply to shared ownership unless at 100% (see CLRA s, so the tenant would lose that protection compared to full leasehold.
On the other hand, the council, without the ability to bring a possession claim on rent arrears under HA 1988 (or HA 1985), would not be able to attempt to forfeit for rent arrears unless they were over £350, or outstanding for more than 3 years.
And, of course, you would need to look very closely at the exact terms of any exclusion of shared ownership in the apparently forthcoming ban on ground rents for leasehold.
Has anyone given any thought to the sheer inequality of Shared Ownership? With upward only rents and HAs probably charging rent on an often over stated equity share (i.e. they buy properties at discount to market value, but get to charge rent on their full value), for someone who funds their leasehold share through their own savings the returns are considerably less than those of the HA. Furthermore, much is made of the discounted rent charged by HAs. 2.75% is encouraged by the H&CA, but if the HA does buy at discount, the actual yield is probably closer to 4% (with the 0.5% accelerator). In many parts of the country that is close to average yields enjoyed by private landlords.
Scam, total scam.
Well that is a money problem. Not dissing the money problem, but we deal with legal problems, of which this, I think, is not one.
Something that hasnt been mentioned on here is trying to sell, the HA charges 1.25% of the “whole” value not just your share which is appalling to “find you a buyer” you do the viewings they do nothing, then if they cannot find one and you sell open market the HA charge you all their legal fees as well as your own its only when you do it you find out as this is never pointed out in the beginning, along with the decreasing Lease that you have no rights to extend, but the HA will charge you for a valuation to extend “their way” and charge you another fee to do this all way too complicated
Except, when is a money thing something that ought to be a law thing? I’m maybe wrong, but isn’t all law, in essence, derived from the need for everyone to agree on the acceptance of (an extended) moral code and the need for justice?
Most commenters (and I’d hazard to guess a majority of the population ), would most likely find this case and this circumstance, whereby someone paying the required premium on a shared ownership property in full out of their own pockets, being subject to forfeiture under certain conditions, to be morally reprehensible…and yet the law, as it stands, states…
Patently, justice is NOT being served by either the law or those practicing it.
Furthermore, if property law ever fell under consumer law, there would be a tsunami of litigation against property owners who have ‘forced’ unfair contracts onto their tenants, relying on the tenants’ ignorance and their dire need for a place to live. Doesn’t that tell us something?
Leasehold (and shared ownership and tenancy agreements) do fall under unfair terms in consumer contract regulations. Rather hard to argue ignorance when the purchaser has instructed solicitors on the purchase.
All leasehold is subject to forfeiture, with no requirement to repay any premium paid. It is just that for full leasehold, there are a lot more conditions and safeguards around the use of forfeiture by the landlord. The difference with shared ownership is that it is an assured tenancy and therefore subject to potential mandatory grounds for possession, without the same safeguards.
I’m not sure your handwaving about the need for justice and justice not being served by those who practice the law gets you anywhere. And I don’t even understand what you mean about ‘those practicing the law’ not serving justice. What is needed is some specific (albeit complicated) legislative action.
What I fail to understand is why no-one has tried to take HAs or even the H&CA to court under an unfair contract challenge. If i were a cynical being, I might be tempted to say it’s probably because after having to put down the vast majority of any savings they may as their ‘share’, they don’t have enough money left to pursue the HAs through the courts.
Here are the facts as I (a layman) see them.
The contracts are usually on a take it or leave it basis. I can understand this may be being imperative for say a £100 purchase, but are we seriously saying a purchase of many tens of thousands of pounds should be offered on that basis?
Most leases are deliberately ambiguous to allow the HAs some ‘wiggle room’.
The contracts are disproportionately skewed in favour of the HAs.
The wording is archaic and can contain sentences that are so dense and lengthy that they are virtually impossible to fully comprehend.
Covenants can be highly restrictive (e.g. I am limited to a car under 2 tons being allowed in my allotted parking space).
The HAs have a dispoportionate number of remedies open to them. Even the tenant’s covenants from the HA can be subject to certain criteria, whereas the HA’s from the tenant have no such criteria.
What’s the point of reading a lease if no negotiation is allowed?
Steve, the fact that a contract places more burdens on one party than on another doesn’t automatically make it unfair. And everything that you mention is typical for leasehold too – and negotiations on residential leases are rare, save for price.
The point of reading a lease where no negotiation is allowed is precisely to decide whether to go ahead or not.
A term is not ‘unfair’ under the meaning of the regulations if it goes to ‘the main subject matter of the contract’ – and most of what you raise does just that. So I am not surprised that there has been no challenge.
Then the law really is an Ass, so far as I’m personally concerned.
I don’t suppose there would be any point in taking the HAs or H&CA to court over a product known as ‘shared ownership’ that doesn’t actually give a share of ownership? That must be contrary to advertising standards and or obtaining money by deception?
I really thought feudalism stopped some centuries past, but obviously I’m wrong.
How come something you’d never touch with a barge-pole and something a judge wished he didn’t have to give the decision he handed down, be so completely legal? Doesn’t that give you some sort of moral dilemma ?
As you may have noticed by this post, and others, we at NL take the view that ‘shared ownership’ is a risky and legally flawed thing. We think it requires legislation by government to fix those flaws and risks. And that is what it would take.
You appear to be labouring under a delusion that the law, where it involves legislation, is changed by lawyers, or that we – lawyers and Judges – can decide to ignore it because we don’t like it. That is, by and large, nonsense. If it is legislative law, rather than common law, then it requires parliament to change it.
And there are plenty of examples of ‘bad’ law, where lawyers and judges wish it were otherwise. The law is not primarily an exercise of moral judgment, it is about the law. Sometimes the two overlap. My job, mainly, is to try to get them to overlap as much as possible.
There is no delusion, rather a wish that lawyers and judges showed come courage of their convictions, so to speak. A raft of questions, letters or petitions to their MPs, by a swathe of legal professionals would carry so much more weight than a hundred times the amount by lay persons. Alternatively you could always collectively ‘down tools’ and just let the ensuing mayhem and threat to order, jolt the political establishment into action.
Why would anyone find satisfaction in knowingly doing a bad job/doing a job where the tools (bad laws) are not fit for purpose?
Very few legal professionals will have anything to do with shared housing. And most of the things you complain about are nothing to do with the law at all, they are the conditions set by the housing associations (and to some extent the HCA). That has got nothing to do with ‘bad law’.
We have been raising the specific legal issues with legislators, and other organisations, as well as doing our best to ensure that people are aware of these issues.
What have you been doing? Apart from wrongly complaining that other people aren’t doing things?
And we work with bad law because it is the law, so there isn’t actually any choice. What on earth do you think we should do instead? ‘Oh no, I’m not taking that shared ownership matter on because it is bad law’?
Quite frankly, as a lay person with very little money, what can someone like myself do? I’ve spent the best part of the past seven months trying to understand the clauses in my own shared ownership lease with very little success in many cases. The HA’s solicitors just ping back questions with ‘we refer your client to the lease’ or don’t answer at all.
My wife and I are very unhappy to be going down the shared ownership route, but it’s our only option. All others are either
beyond our reach or unacceptable due to age, finances, lack of secure tenure offered etc; etc.
One thing is certain. Once we are settled, I shall make it a mission to expose, harrass and complain about shared ownership to as many HA CEOs, media, regulatory bodies, politicians et al. I won’t be washing my hands of anything.
Been offered 2 bedroom house as part shared ownership,glad i’ve not signed any paperwork after a couple of hours reading,I’ve realised normal sane folk shouldn’t even go near it..Will be contacting them this week to pull out.
I hope this post is still active having spoken to my neighbours they have all as well as myself been asking why the outside of our properties are not maintained we did not sign up for this but the HA London quadrant have answers not our problem surely this is grossly unfair owning just 45% and having to replace windows boilers fences window frames all impossible as shared owners are low income nothing explained on purchase by solicitors as Giles says I’ll informed buyers
Repairs are often a problem – not least where the Housing Association itself leases some flats from the freeholder, who own the property. It will come down to what what your lease says about repairing obligations by your landlord.
People really need to check the repairing obligations of the landlord before purchase.
I need to get hold of the Lease the HA have told the neighbours they will not maintain the outside of the houses at all and not do any work in gardens fencing or front, is it legal that they can charge me for their legal fees on sale because this is what they are saying if sold open market
These are separate things. Maintenance obligations will be set under the lease. Legal costs on sale – yes, they probably can.
I’m thinking of buying the house I live in under Social Homebuy. People hardly ever use this scheme, but it seems like shared ownership, only you buy a share of the house you live in. I have accrued a bit of capital over my lifetime and can afford to buy 40% with cash. I will never be able to buy the rest as I’m 61 and won’t be earning much more, but will have to continue to rent the other 60%. Unfortunately the rent will actually go up (even though I’ll only be renting 60% instead of 100%) as I’ll then move to a different tier of rent. It’s a nice house, a Victorian semi, owned by a HA, where I’ve lived for 30 years. I’d love the security of knowing I own 40% and I hope I’d be able to leave the house to my sons as it’s probably the only way they’ll get a decent place to live in London. I’ll get a small discount on the Right To Acquire scheme, but not much.
Does anyone have any experience of Social Homebuy? It seems like a very rare thing (is this because it’s rubbish?).
Jane
The discount on market value is only £16,000, much lower than ‘right to buy’. Otherwise it has all the same issues as shared ownership. You don’t actually own 40% -you just have the right to 40% of the equity when you sell. As an inheritance, your sons would probably be looking at a buyback from the Housing Association, with potential arguments over the valuation. You have to pay 100% of the service charges – look into those carefully as they are not restricted, like the rent is, and can increase substantially.
If you want to go for it, that is fine, but I’d suggest you get careful advice no the benefits, costs and restrictions first.
Thank you for your reply. The one ‘plus’ which is keeping me interested is that the HA’s valuer has undervalued our house (he says £570k, 2 independent valuers have both said £700k). I would love to talk to someone about this. I had an appointment with one IFA and his view was ‘what a bargain, go for it’. I would like to speak to someone who could look at my situation and alert me to any pitfalls and then give an opinion on whether I’d be safer to just continue renting. Is there anywhere I could go for this sort of advice? I’d be happy to pay for it of course. I live in London.
Not something we can do here. And I’m not sure whether it is legal advice that you are after, either. Sorry.
Thank you Giles
I have been stunned by the lack of protection for the public in this type of property “purchase”. I am 64 and wanted to take advantage of owning a part with option to buy later. I am also a letting agent by profession. Why does the private company such as Heylo not have responsibiltiy to repair if the “part owner” is not legally an owner and the tenancy is assured? Surely landlord obligations to repair apply?
Not on long term tenancies – section 11 Landlord and Tenant Act 1985 does not apply. Only whatever is in the lease.
A friend told me her daughter was thinking of getting a shared ownership property – 10+ years after learning about Midland Heart case (I think it came out a year after I left shelter) , I insisted she mustn’t and explained about it – Sad to come back and see that case has never been appealed, and that 5 years after it, Shelter were promoting Shared ownership as an option.