Buying a Leasehold Flat
Purchasing leasehold property is far more complicated than that of freehold, because of the amount of information that surrounds the tenure. Whilst some elements remain the same for both freehold and leasehold properties, such as checking the property title, and various searches, it is leasehold purchasing where efforts have been made to make information easier to get and more transparent, starting with prescribed lease clauses. There are also 2 forms: LPE1 for use from 1st October 2015 and which has questions asked on behalf of the buyer, and LPE2, the buyers leasehold information summary with the latter being introduced in response to the Competitions and Market’s Authority market study on Residential Property Management Services. This study looked to improve the information given to buyers of leasehold property about the financial obligations they were committing to.
You don’t actually get to own a leasehold property outright because it is a lease that is being purchased, not the bricks and mortar. Leasehold tenure is actually carved as an ‘interest’ from the dominant estate of freehold and allows you to live in the property for a pre-determined number of years. A brand new leasehold flat or house usually starts with a term of 99 or 125 years. Each time the lease is sold, the unexpired term (the number of years remaining) reduces. This is why leases vary greatly in duration with some having so few unexpired years left on them that they are difficult to market due to the criteria demanded by lenders. Others are of a duration of 999 years where the freehold has been purchased via collective enfranchisement, and other leases fall somewhere between the two where individual lease extensions have been granted.
At the heart of the lease lies the covenants (promises) and they are what you (as the leaseholder) contracts to do and what the freeholder landlord is bound to do. These covenants will either be expressly stated (written into a lease) or implied by law and it is important to note that if applied by law they are equally binding. The freeholder can be an individual, a finance company, a mixed use company (owning both commercial and residential properties in the same developent, and in the social housing sector, local authorities. A resident management company can also be a freeholder.
Some blocks of flats have more than one freeholder because whilst a freeholder holds what is known as a ‘superior’ lease, they can choose to sell what is called an ‘intermediate’ lease to someone else, who is known a head-lessee. This then results in 3 different levels of ownership in the building:
- The freeholder who has the highest level of overall ownership;
- The head leaseholder (also called the head lessee) who is directly responsible to the leaseholder;
- The leaseholder.
EXTENDING THE LEASE
Some buyers want to know if the lease can be extended during the conveyancing process which it can, provided the seller has owned the property for 2 years or more.
The process is as follows:
- After agreeing with the freeholder on the price to be paid, the amount is inserted into a Deed of Assignment of the Benefit of the Notice which is then served on the freeholder. Note that this figure is for the lease extension only, and not the sale price minus the extension cost. It is also highly advisable for this figure to be determined by a qualified surveyor, for which the buyer should be prepared to pay.
- Whilst the conveyancing solicitors acting for both parties should agree the form, the rules for completion and service of these notices are very strict. If they are not adhered to then the notice will be declared invalid, involving the buyer in litigation about the validity of the claim. If the claim turns out to be invalid then the buyer will have no choice but to wait until he is legally entitled to serve notice himself (i.e. he will have had to have owned the property for two years or more).
- Once the seller has the cash from the sale, they pay the cost of that extension to the freeholder
- On completion the sellers rights stated in the Notice served on the freeholder will be properly assigned to the new owner at the same time as the assignment of the lease itself, i.e. when the buyer takes actual ownership. Note that if technical legal reasons prevent this then the claim will be deemed to be withdrawn.
The notice itself should be served between exchange of contracts and completion because if the buyer withdraws before exchange, the seller may have to a) complete the process himself and b) pay all the costs.
It is important however to be aware that the lease will not be extended at completion if it is carried out under statute as there are specific time-frames to adhere to for each part of the process.
Others prefer instead to try to enter into an informal arrangement with the freeholder, perhaps to try speed up the sale but this can be an extremely risky route to take because there is no protection against it going wrong.
The school of thought is that it is always preferable for sellers to have obtained a lease extension before they sell, thereby allowing them to ask a higher price for the property. On the other hand they might not want to do this because the time taken to secure the benefit of a lease extension may add several months to the conveyancing process. Not only that but the buyer will not know what he is going to pay until the price is agreed with the freeholder. Some freeholders take so long to agree terms that the situation ends up having to be referred to the First Tier Tribunal for a determination.
Under the Special Conditions of Sale, the basic rule is that outgoings of the property should be apportioned between the buyer and the seller and both conveyancers will work out the apportionment on service charge demands with effect from the completion date. Despite this, many new leaseholders receive service charge demands long after purchase. usually because there is a shortfall for the service charge accounting year during the time the seller owned the property. Any monies owed (or credited) are not finalised until the accounts for the block are issued some months later.
The usual way to allow for such debts is for the conveyancing solicitor or property lawyer to agree with the purchaser’s conveyancer to hold back a small amount of money from the sale proceeds which will be passed on when the actual amount of the debt is known. This is known as a retention and more on this can be read here.
When purchasing property the best title to get is that of ‘Absolute Title’ because it means that the Land Registry certifies that the title cannot be challenged. Whilst it is available for both freehold and leasehold properties it will only be granted in the case of leasehold if the registered proprietor has provided full details of the freehold title to the property to the Registrar. This acts as evidence of their right to grant the lease. If this the case then this guarantees that the landlord has ownership of the title.
More on titles can be read here.