Nearly Legal: Housing Law News and Comment

Residential Leasehold: The Competition and Markets Authority speaks

There are some major problems in the residential leasehold property market. They range from the simply inexcusable (e.g. the doubling ground rents that continue for the whole term of the lease), to the unintended legislative loophole (e.g. the long lease as an assured (shorthold) tenancy problem), through to a broader debate about what “ownership” and, in particular “home ownership” means in the popular imagination as against the property law concept of a leasehold estate.

The Competition and Markets Authority has been looking at the regulatory and market based flaws in leasehold property and has just published an “updated report” which, in effect, amounts to interim findings and an outline of the direction of travel. It’s only 30 pages long so well worth a read if this is your area of interest and you can find it here.

In short:

(a) on ground rent, the CMA does not really understand the purpose of ground rent in modern leases and considers that ground rent clauses are often hard to understand so that consumers may not know what they are agreeing to pay. This problem is not necessarily solved by linking increases to RPI. Likewise, and for obvious reasons, ground rents which turn the long lease into an assured (shorthold) tenancy are a major concern. The CMA supports proposals to abolish ground rents on a prospective basis and is preparing to take enforcement action in respect of existing leases.

(b) The sales practices of new build developers are a source of concern. Purchasers are pressured to complete within a short period of time. They are often not told critical information (such as tenure!) until late in the process. They are given incorrect information about ground rent and future enfranchisement costs.

(c) Permission fees and service charges are often very high. The proposals here seem a bit less developed. The CMA will publish guides and fact sheets  to assist consumers, but it also proposes some sort  of new (quick) redress scheme and invoking a right to self-help.

(d) The checks and balances that one would expect to find in a properly regulated market are absent. Here, what the CMA means is that it would have expected the directors of the companies involved in this sector to try to push their companies away from such behaviour, if only for reputational reasons. There is also concern about the role of solicitors in this process.

 

Finally, I confess that I am struggling to keep on top of all the reform proposals and their progress (or lack thereof). The Law Commission is still working on reform proposals for enfranchisement, right to manage and commonhold. The CLG Select Committee has published a report which, as yet, does not seem to have prompted the government into action. We have had government policy announcements on reforms to limit new leasehold houses, restrict ground rents and reform rentcharges (in simple, but inaccurate terms, freehold service charges). The Welsh Government is doing its own work in these areas. The main high street banks have changed their lending terms so as to try to inhibit new (high) ground rents in new leases. It’s all a bit disperate at the moment. The case for reform is overwhelming. But what matters is the detail, nature and specifics of the reform. On that, we all just need the government to publish some draft legislation.

 

 

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