Reforming the residential leasehold market

The Government has published a consultation¹ on measures to tackle what it identifies as unfair practices in the residential leasehold market. The reforms would apply to England only.

What is the problem?

It is estimated that in 2014/15, there were 1.2 million leasehold houses in the owner-occupied and private rented sectors in England and Wales, with new-build houses increasingly being sold as leasehold, as opposed to the more traditional freehold ownership.

The Government is concerned that the sole motive for this in many cases is to generate an additional income stream from the annual ground rents paid when a house is leasehold, with that income stream either retained by the developer or sold to investors. According to the consultation, developers report that the returns from selling on ground rents can be up to 35 times the annual ground rent value.

Another recent, no doubt related, trend which has attracted a great deal of media coverage is a significant increase in the cost of ground rents. Traditionally the annual ground rent payable under a long residential lease of a flat or a house has been set at a low nominal amount or even a token “peppercorn” rent. Increasingly, new long leases have higher initial ground rents, short review periods and significant increases on review. The Financial Times recently reported that an analysis by a housebuilder of houses sold between 2007 and 2011 found that many had ground rents that doubled every 10 years for the first five decades, so that an initial ground rent of £295 per year increased to £9,440 per year after 50 years.

Onerous ground rents also have a knock-on effect by, for example, increasing the cost to the leaseholder of exercising their right to buy the freehold of their house or to extend the lease of their flat as the formula to calculate the cost of doing so takes the ground rent into account. They may also make a leasehold property harder to sell or to mortgage.

The concerns of lenders

Mortgage lenders are increasingly wary of onerous leasehold terms for new-build residential properties.

In June 2017 the Council of Mortgage Lenders (now integrated into a new trade association, UK Finance) published an information document on issues concerning lease terms for new-build properties which may have a particular impact on the value of the property and affordability of the mortgage loan.

The general points made in the document include that:

• lease terms which involve obligations for future payment, such as ground rents, are more likely to be considered acceptable for lending purposes if they are set at levels that would not materially change mortgage affordability in the future, or impact on the future value of the property;
• lenders may query why a property is offered as leasehold, for example if it is a house;
• in relation to ground rents, lenders would expect these to be nominal.

What is proposed?

The main proposals on which the consultation seeks comments are:-

• Limiting or prohibiting the sale of new houses as leasehold.
• Discouraging the sale of new-build leasehold houses by removing or limiting the availability of the Help to Buy equity scheme in relation to them. The Government would like to introduce this non-legislative policy change as soon as possible.
• Limiting ground rents in all new residential leases over 21 years. In fact, the Government suggests restricting them to a peppercorn (zero financial) level throughout the term.
• Any such limit would not be retrospective, so views are sought on how to help leaseholders who are currently subject to onerous ground rent terms. One housebuilder has already announced that it is setting aside £130 million to help its customers who are facing doubling ground rent terms.
• One unintended consequence of the increasing levels of ground rents is that, where ground rents exceed either £1,000 per year in Greater London or £250 per year elsewhere in England, leases are classed as an “assured tenancy” under The Housing Act 1988. If at least three months’ rent is more than three months in arrear, the landlord of an assured tenancy can seek a possession order. The Government proposes to update this legislation so that it does not apply to long leases over 21 years.

What would be the impact of the proposed reforms?

It has been argued that a limitation on new-build leasehold houses through regulatory reform might affect the supply of new homes and that legislation having the effect of restricting the sale of valuable ground rent income streams would result in increased property prices – which is unhelpful where you have increasing inflation rates and a countrywide shortage of housing. It may be the case that the adverse publicity already generated on this topic, the heightened awareness amongst prospective buyers and the increased caution of lenders will of themselves stifle these practices in the future. However, that is perhaps little comfort for the thousands of homeowners already encumbered with leasehold interests that include onerous terms.

Next steps

The consultation closes on 19 September 2017 and we will report further once we know its outcome.