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UNCORKED

The Leasehold and Freehold Reform Bill: its time has come…

by | Dec 11, 2023

Residential Investor

The Leasehold and Freehold Reform Bill: its time has come…

by | Dec 11, 2023

The Leasehold and Freehold Bill is the most significant reform of the leasehold system for a generation, and many – including me – hope that this assault on all its outrageous income streams are its death knell. Other jurisdictions have versions of commonhold, and so should England and Wales.

This won’t be popular with freehold investors, or the terracotta army of lawyers, valuers, chartered surveyors, managing agents and insurance whose income comes from our puposely complex and inefficient leasehold system.

But, as the great US journalist Upton Sinclair said in the 1920s: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

Why is the government launching this assault on the leasehold, and why now?

Government – both the deep state and the Conservative administration – has become increasingly dis-enamoured of the residential property sector, in spite of its generous party donations.

Spreading leasehold houses around the country and squirrelling in aggressive 10-year doubling ground rents and other income earners in the leases was a disillusioning surprise. Not least because the plc housebuilders responsible were so generously subsidised by Help To Buy and grants from Homes England. So as well as quite knowingly dumping their customers into a mire of ordure, they were ripping off the rest of us as well.

In fact, the leasehold houses scam self-corrected quite quickly in 2017, as consumers simply refused to buy these products. In addition, dozy mortgage lenders who had originally signed off on them, realised resales with such aggressive ground rent terms were impossible, and so switched off financing on ground rents above 0.1% of sales price.

Even worse was the fallout after the Grenfell tragedy. LKP was warning in the autumn of 2017 that it did not believe leasehold would survive the kind of scrutiny that would result.

As well as building with rip-off legal tenure, our cartel of major housebuilders built spectacularly badly. The sectors suppliers cheated the existing safety regime. The Grenfell inquiry report is awaited. So it is still an open question whether corporate manslaughter charges will result.

The upshot has been a multi-billion bill for taxpayers to put right the nation’s highrise blocks, and a deeply unpopular levy on the housebuilders to cough up.

Of course, government came to this conclusion only after rejecting developers and freeholders attempting to dump the entire cladding remediation costs onto the hapless leaseholder consumers whose only error was to trust household name home builders and purchase their products.

So government got fed up, and in Michael Gove housebuilders – and freeholders – have a formidable enemy.

(A minor embarrassment of the new Bill is the absence of the much trumpeted ban on leasehold houses. This is easy to amend, however, and we are rather too pleased with the rest of it…)

Who will gain financially from the direction of travel of the new legislation?

Leaseholders. The Bill is an assault on all the income streams in the leasehold sector, whether legitimate, such as ground rents, or dodgy, such as insurance commissions, gaming legal costs, padding the service charges and the fag packet modelling to make enfranchisement as expensive as possible.

What happens with ground rents then?

The government is pushing for all existing ground rents to be a peppercorn, which will directly impact billions of pounds paid by leaseholders to private equity investors who have hoovered up these assets over the past two decades. (Pension fund exposure here is minimal).

But won’t there be a legal challenge: a judicial review, or a freeholder bankrolled to take a case to the Supreme Court? That was a widespread assumption, but direct statute is difficult to challenge, and these proposals would have had Treasury and Number 10 scrutiny.

Ending ground rents would be great. It will cause tears, but not those of homeowners.

What about service charges and insurance commissions?

They are to be addressed in a formalised schedule, that has to be comprehensible and on time – late accounts are absolutely routine in this sector.

The detail on this, and insurance commissions is to follow.

Legal costs?

Bad news for the sector here, as well. Most leaseholder rebellions (say, over service charges) are utterly crushed by the imbalanced cost regime of leasehold litigation. The landlord gets his legal costs under the lease; the leaseholder never does. This is to be reformed and made equitable, producing equity of arms in these disputes. It should ensure fewer of them, as the highhanded management of freeholders withers.

What about enfranchisement, which offers such rich pickings for so many professionals?

The key points are that leaseholders no longer pay the freeholders’ legal costs as well as their own; new lease extensions are 990 years; if existing ground rents are reduced to a peppercorn then the cost of extension will be drastically reduced.

But isn’t marriage value also to be banned?

Yes, and a good thing too. That this nonsense ever got legitimised is an example of the extraordinary imbalance in the leasehold system.

Where there is a short lease under 82 years it is reasonable that freeholders are compensated for the loss if a lease is extended. But there is no reason at all for them to get a cut of half the supposed the uplift in value of a flat once it has a decent length lease.

In the existing regime, there very likely is no profit for leaseholders at all once they have paid the freeholder’s legal costs.

Marriage value calculations, cobbled together by obliging chartered surveyors sucking up to big landlords, are a try-on too far and should never have been accepted in the first place. Their obliteration, by the political party supposedly sympathetic to “business”, is sweet music to flat owners.

What does this mean for people employed in the enfranchisement business?

The outlook is bad and they should perhaps consider retraining. No leaseholder should consider extending their lease or buying a freehold while this law is going through Parliament.

Stripping out the completely unnecessary costs in the enfranchisement game lies at the heart of the reform.

But what do these reforms mean for block managers?

If it is the case – as I believe – that this Bill kills off the leasehold business, it means that block managers need to respond to the people who do all the paying: the flat owners.

More sites are going to be self-managed, and commonhold is around the corner. The old business model is busted: no longer gouging out as much income as possible from a block of flats, but serving the interests of the people who live there.

For years the trade bodies in this sector – which have of course sucked up to the money – have intoned hypocritically that the leaseholders are their customers, knowing full well that their customers are the freeholders who appoint them.

Soon block managers will be working for the flat owners, and answerable to them as well.

About Sebastian O'Kelly

About Sebastian O'Kelly

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