When the freeholder is deemed absent, (whch means that all efforts to trace them have failed) it is not possibe to serve the initial leaseholder notice as part of the collective enfranchisement process as there is no one to serve it on. Legislation has however made provisions by allowing leaseholders to make a formal application on a CPR Part 8 application form to the Court for a Vesting Order under s26(1). This will allow for the transfer of the freehold title when the freehold value has been determined by the First Tier Tribunal and the payment received by the Court. The Court will then designate someone to sign a transfer of the title in place of the missing freeholder. The land registry will then register the transfer of the freehold title to enable leaseholders to start managing the building.
If there is a head landlord present but the freeholder is missing, the court can order that the head landlord take on the role of Reversioner and deal with the claim in the usual way.
It is important to note that before a Vesting Order is granted the Court will need to be satisfied that the proper attempts have been made to trace the freeholder which are as follows:
- A notice of claim being served on the freeholder’s last known address or the same notice served in the London Gazette or a local paper;
- A request sent to the court to dispense with the serving of a notice;
- The Land Registry searched to make sure that the freeholder no longer owns his last known address, has moved to an unknown address or the services of an Enquiry Agent has been engaged;
- Witness statements provided confirming that a visit to the Freeholder’s last known address yielded no forwarding address, or;
- An absent freeholder title indemnity policy that a recent purchaser of a flat may have taken as a condition of securing the mortgage.
- Witness statements confirming that a visit to the freeholder’s last known address did not provided a forwarding address.
If the Court is satisfied with the application and the steps taken to find the freeholder, a Vesting Order can be granted without the need for a formal hearing.
Whilst the transfer cannot be reversed if the original freeholder suddenly re-appears, the freeholder can apply to the court for the premium to be paid to them.