Leasehold and Freehold Reform Bill

Debate between Lord Foster of Bath and Earl of Lytton

Committee stage
Monday 29th April 2024 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I move Amendment 82C and will speak to Amendments 82D to 82M standing in my name. These draw on good practice in the management of multiunit developments in Australia, Europe and North America and seek to replicate best practice here. They are also designed to address some of the concerns raised in earlier debates, particularly in the context of the proposed change to the threshold for enfranchisement in mixed-use developments from 25% to 50%. I suggest that similar amendments to a future commonhold Bill would go some way to meeting concerns that have been expressed about the risks associated with a wholesale move to that tenure.

The amendments provide for the appointment of a building trustee. It is proposed that this should apply in the largest and most complex developments. Building trustees might also be appointed at the request of a recognised tenants association or by the courts. The building trustee will be an independent and impartial figure whose primary role of auditing performance would ensure that interest rights, responsibilities and performance of the landlord were properly balanced with those of leaseholders and, more importantly, that the building is properly maintained and the service charge provides value for money. I noted in our earlier discussions the Minister’s comments to me about value for money, but it is the benchmark used by the National Audit Office for local authority finance, I believe—I eyeball noble Lords who have experience in that line of business.

Amendment 82C sets out the buildings this would apply to, and Amendment 82D outlines the trustee duties—I will rattle through the amendments at some speed. Amendment 82E is about the appointment process of the building trustee. Amendment 82F sets out the trustee entitlement to documents and information.

There is, of course, the question of who pays for the building trustee. It would be unreasonable—particularly during a cost of living crisis—to burden leaseholders, especially as many of the buildings covered by Amendment 82C are already facing increased service charges owing to the new safety requirements under the Building Safety Act. Instead, Amendment 82G provides that the costs of building trustees would be covered by a levy on providers of commercial and residential mortgages and block landlords, excluding enfranchised building and tenant right-to-manage companies.

Amendment 82H sets out what would be the baseline value-for-money benchmark. This is necessary because there is a risk of inevitable bias in the management under the auspices of a party to the leasehold arrangements. This might be perfectly reasonable in terms of the person instructing the management, but still fall well short of the optimal.

One of the Bill’s key aims is to make it cheaper and easier for leaseholders to enfranchise. I welcome that. My amendments are designed to augment these plans by providing a light-touch oversight to ensure effective, efficient and economic management of a building. This backstop would require reassurance to lenders, leaseholders and other stakeholders that a freeholder-managed or resident-managed building will be properly looked after.

The reassurance offered by the building trustee is needed, as there is strong evidence that, monetising policies by a few freeholders apart, leaseholders themselves are often reluctant, unable or lack the skills to take on the responsibility and liabilities for the management of increasingly complex buildings, or to direct the professional managers adequately. Indeed, some complaints reaching my mailbox are about residents’ own management companies, and the Government’s own research found that leaseholders were concerned about issues of working with neighbours, lack of time and reluctance to take on additional responsibilities beyond those necessary as a home owner.

That touches on a point raised by the noble Lord, Lord Moylan, in a previous group, because although most leaseholders will appoint a managing agent to undertake the day-to-day running of a building, they themselves remain responsible for key decisions and setting priorities, such as service charge levels, authorising maintenance schedules and dealing with arrears. It can be difficult to get collective agreement on these issues, with resultant detriment to the management of the building fabric. According to data from the Scottish House Condition Survey, half of all housing is in what it describes as “critical disrepair”, and almost half demands “urgent attention”. The situation is most acute in tenements, so I appreciate that this probably relates to older buildings, but paying for common repairs or maintenance was the most frequent cause of disputes in these buildings.

By taking a whole-life view of the building, the building trustee can seek to avoid that Scottish experience by providing an independent assessment of maintenance needs and condition, and ensuring sufficient provision is put aside to maintain the building properly. Amendments 82I and 82J would require landlords to provide a 10-year plan of anticipated expenditure on capital works and building maintenance, and to establish a sinking fund to avoid leaseholders facing large, unanticipated bills. The plan and the fund would be subject to an independent audit and assessment by the building trustee to ensure that necessary works, and only necessary works, were planned for and adequately funded.

In an open letter to lenders on taking commonhold as a security, dated 21 July 2020, the Law Commission recognised that

“the value of a lender’s security is inherently linked to the management and maintenance of the building in which a flat is located. A failure to keep the building in repair, to insure it properly, or to keep sound finances all have significant potential to jeopardise the value of a lender’s security”.

The same is, of course, true for leasehold buildings. That is why I believe that professional landlords and lenders should cover the cost. It is the banks and the building societies whose capital is at risk. The building trustee should provide a cost-effective way of reassuring them that the flats they have lent on are being properly managed, and of maintaining the value of the security. The same is true of commercial lenders on mixed-use developments. I envisage that the Secretary of State would outsource the appointing of building trustees to an external body, as provided for in Amendment 82E.

Two significant further powers would be conferred on the building trustee through Amendments 82H and 82K. Amendment 82H would allow the building trustee to apply to the tribunal on behalf of leaseholders to seek refunds of expenditure that does not provide value for money. Amendment 82K would allow the building trustee to adjudicate in disputes between landlord and leaseholder, and between leaseholders. One of the main areas where I see this provision being used is service charge arrears. It is particularly important in leaseholder-managed blocks that do not have the wider financial resources of the major landlord groups that service charges are paid promptly. Failure to do so prevents a building being managed properly, and in extreme cases places all residents at unnecessary risk. If essential safety works could not be undertaken or building insurance obtained, that would create real problems.

Evidence from other parts of the world suggests that condominium statutes do not have sharp enough teeth to recoup outstanding contributions efficiently and effectively. In England and Wales, we currently fall between two extremes. I have sympathy with those noble Lords who argued in a previous debate that forfeiture, with the exorbitant windfall that it can offer landlords, is inherently unreasonable. Equally, I recognise the point the Minister made in previous discussions that civil debt recovery proceedings can be lengthy. The building trustee’s power to adjudicate offers a faster and less formal route of dispute resolution than the court, and supports the building’s cash flow.

Amendment 82L would provide for the building trustee to take over the management of a building if its landlord becomes insolvent. Historically, this has happened to very few landlords. However, the Committee will recall that I have previously raised concerns that not all landlord groups have the funds needed to meet the building safety remediation liabilities and could therefore become insolvent. The financial position of these groups may get significantly worse, depending on the Government’s decision on ground rents. Some of the country’s largest landlord groups—I refer to E&J Estates, which is landlord to around 40,000 homes, Long Harbour, which is landlord to around 193,000 homes, and Regis Group, which is landlord to around 30,000 homes—have significant borrowings that are due to be repaid from ground rent income over the next 40 to 60 years.

To the best of my knowledge, the Government’s final position is still unknown but, based on press comments on the Secretary of State’s own preference, it is reasonable to assume that the finances of landlord groups dependent on ground rent income to repay their borrowings will come under further, if not fatal, stress. This is not just my view; it is also that of the Government, whose own impact assessment states that

“there may be potential insolvencies/forfeiture and associated costs where the freeholder defaults on contractual obligations as a result of the cap”.

However, it does not seem that there has been further assessment of just exactly what this would mean in practice.

The collapse of a major landlord group would be without precedent and could cause tens of thousands of leaseholders in hundreds of buildings to be in serious trouble. In blocks subject to intermediate leases, it is likely that contracts covering everyday management and maintenance would be at risk because there would be no landlord to provide instructions. Conveyancing and lending transactions, which are already under stress, would be paused as there would be no one to process essential documents such as notices, deeds of covenant, landlord certificates and leaseholder deeds of certificate. The ability of the building trustee to assume the management of a building in such circumstances, and prevention of possible management contract termination, is an essential backstop that prevents leaseholders being left in limbo for months while they try to set up an alternative arrangement for managing their buildings and/or await the outcome of the administration or liquidation.

Finally, Amendment 82M would simply ensure that the building trustee has relevant qualifications for the task.

I hope your Lordships will see the merit in these arrangements, and that the Minister will be able to agree that measures such as this are a necessary complement to the Bill’s intentions. While I commend these amendments to the Committee, I simply say that I am not set on this particular structure, but the principle needs further examination to provide the point that I have constantly been on about—namely, consumer protection. On that basis, I beg to move.

[Lord Foster of Bath (LD)]

My Lords, I will speak to Amendment 95A. The Long Title of the Bill is very clear. It includes the phrase

“in connection with the remediation of building defects”.

Much of the debate has been on the management and funding of remediation and maintenance, but the early identification of defects is clearly really important in order to avoid some of the problems that can occur, as, tragically, we have seen, for instance, in the Grenfell Tower fire.

That fire was caused by a faulty electrical appliance, but there is also a large number of fires caused by faulty electrical installations. Indeed, the charity Electrical Safety First has calculated that there are around nine such fires every single day in England and Wales. On average, they cost about £32,500, but they have in many cases ruined lives, and on a few occasions have meant, tragically, that people have lost their lives. Quite clearly, it makes a great deal of sense to identify faults at the earliest possible opportunity.

Levelling-up and Regeneration Bill

Debate between Lord Foster of Bath and Earl of Lytton

Committee stage
Monday 20th March 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I will get the guilt off my shoulders through your Lordships’ provision of the confessional: I declare an interest as co-owner of a second home in the West Country and of two short-term let properties in the same area. All, like the house I live in, which is in another part of the country, are legacies of estates that have been broken up and whittled down. Both areas have important family historical and indeed, in some cases, national historical associations.

Having declared that, I ought also to declare to the noble Lord, Lord Foster of Bath, who mentioned the Built Environment Committee, that I was, until the latter part of January, a member of that committee, and very privileged to have been so under the chairmanship of the noble Lord, Lord Moylan, who I am pleased to see in his place, and before him, the noble Baroness, Lady Neville-Rolfe. So I am familiar with the matters that were brought before us. However, I shall leave a lot of that to one side because there has been a bit of disaggregation in the groupings here. We have group 10 coming up, in which aspects of this will recur, and I find that quite difficult to deal with: I shall try to avoid getting up then and saying the same thing all over again and boring your Lordships.

While I have involvement with both normal assured shorthold tenancy properties and short-term buy to let, I certainly do not have anything to do with keeping property deliberately empty: that would be complete anathema to me, and I say so as somebody with professional training: I am a chartered surveyor and I know that all that happens with empty properties is that they deteriorate. They are much better occupied and lived in or used in some way.

I agree with the general premise that residential properties should not be deliberately kept empty for no good reason. I know that in some areas—the City of Westminster is one—there was a thought that foreign investors were buying up high-end residential accommodation and keeping it empty under the premise that perhaps it was less valuable if it had been previously occupied. It takes all sorts, but that is a particular situation. I support the noble Baroness, Lady Hayman of Ullock, in her Amendment 166 because there is a great deal of speculation about how many empty properties there are and where they are. They are not always in the places where people want or need housing and have to live and work. So, first and foremost, there is a distribution problem, along with a numbers problem. We need to sort that out, and there needs to be better data on that.

I would go further and suggest that the reasons why a property might be empty need to be understood before we set about making dramatic changes, either to the amount that is levied or to planning, although I take the point made by the noble Lord, Lord Foster, that something probably needs to be done in some of the areas that the noble Lord, Lord Shipley, referred to—the hotspots. They are not actually everywhere; they are not in every town and city; they are in defined places. Even those who particularly object to the idea of second homes and holiday homes altogether on principle recognise—and the data seems to show—that these are in quite specific areas. They are not necessarily in holiday locations at the seaside; they can be in the middle of cities and in parts of Greater London. We need to identify that.

We should not underestimate the inventiveness of those faced with a surcharge, any more than we should fail to consider the equity of a surcharge where there is a genuine reason the property is empty. The noble Baroness, Lady Hayman, referred to that and I use the example of the Ds: death, disrepair, dispute, debt, decarbonisation and, of course, redevelopment. Sorry, “redevelopment” is not a D, but noble Lords will get my drift.

Another aspect is that if there are to be additional charges, is that for the purpose of rectifying some particular, identifiable ill or mischief that is occurring, or is it just another tax? If it is just another tax and it is going into some jolly old pot, I am not particularly keen on that. There needs to be some degree of hypothecation. If there is a demonstrable case—for instance, that empty properties affect affordability in a locality or are adversely affecting incomers who might be economically active—the tax yield generated should perhaps be devoted to that or allied purposes and not put in some general pot. Presumably the case needs to be made.

I agree that ultimately, subject to some sort of national framework and means of analysis, the decision should be for the local community to put in place—and not necessarily be dictated from on high. The authorities, having made the case, must accept that the principle stood behind that is binding on them; otherwise, we risk a rather unedifying and opaque state of affairs, where the power is invoked for one reason but implemented for some entirely different objective altogether, and I would not be keen on that. We do not need a knee-jerk reaction to all that. There needs to be a consistent methodology for assessing the nature of empty second properties or short-term letting, and the detrimental effect these are having.

The noble Lord, Lord Foster, gave a graphic account of the issue, which I know from—

[Lord Foster of Bath (LD)]

Before the noble Earl moves on to another point I raised, could I ask, through him, for the Minister to perhaps confirm that even in the current legislation as proposed, it will be possible for councils to add a premium on the council tax for empty properties? It would be for the council to determine how that money is used; for example, my own local council has already a debate on this issue and proposed that the vast majority of additional money raised will go towards the building of more affordable homes in the area—to address the problem that is now being created because of the empty properties and short-term lets.

Housing and Planning Bill

Debate between Lord Foster of Bath and Earl of Lytton

Tuesday 9th February 2016 Lords Chamber

[The Earl of Lytton]

My Lords, this series of amendments has raised some very interesting points. At Second Reading, I suggested a means whereby prospective tenants might get access to information on landlords who were signed up to a reputable body with established standards that it imposed on its members, and with current and valid membership of a dispute resolution and redress scheme. I am told that there is no such facility. My thought was to bring out the best and to lead from the front with the positives rather than try to deal with the negatives and, in so doing, squeeze out those rogues we have heard about. It was suggested to me by a residential managing agent of my acquaintance that it would be a bit like Checkatrade or TripAdvisor, particularly if it had user or customer—that is, tenant—feedback built into the system. However, I cannot see that that sort of thing can work by compulsion.

I am not an advocate of a compulsory scheme, as proposed by noble Lords in some of the amendments. It would have large costs; it would be readily circumvented, especially by the rogues; and it would suffer from a measure of disregard through ignorance among the 1.5 million one-unit property landlords. I tend, therefore, towards the solution of the noble Lord, Lord Flight, but, again, with some caveats. I would particularly like to know what proposed new paragraph 27A(2)(a) means in terms of the word “category”, and, with apologies to him, where Airbnb fits into the framework. The Government have already moved to facilitate this trend, which may be here today and gone tomorrow. How, therefore, do you keep track of that as a “category” in terms of art? A holiday let today may be an assured shorthold tenancy tomorrow, or vice versa. I see great practical problems in this regard.

There is, however, another problem about candid declaration, if one is going down this road. How frequently, given this quite rapid churn in the system, do you have to trawl for the information to ensure that it is bang up to date? What happens when something that has planning consent for, for example, holiday lets turns out to be on an 18-month assured shorthold tenancy, potentially in breach of planning control? For that matter, what happens when it operates in the other direction? There could be issues to do with planning or potential breach of private contract, and I wonder who gets to see and use the information garnered by this process. There is quite a quite dangerous mix of stuff here, with all sorts of people coming in with different motives. The truth is that, over many years, housing has become commoditised. It has gone beyond being the roof over your head and the security for your family; it is now an investment vehicle, a pension pot and a place to park a significant sum safely where you can manage it and see what is happening, as opposed to subcontracting it to somebody who manages portfolios on the stock exchange, where you may have less control. That brings all sorts of different motivations and methods of managing, owning and occupying property.

I said earlier that I would hesitate, if I were a local government official—which I am not—to delve into this issue. It has very significant resource implications. I still tend, therefore, to the amendment of the noble Lord, Lord Flight, but it has a number of holes and would provide far from perfect coverage. That said, we are beginning to drill down and head in the right direction, which is somehow to find a method whereby people will voluntarily sign up because they see it as being in their interests to do so—because they want to be seen as the good guys and the providers of quality, and not to be associated with the rogues about whom we have heard so much today.

I hope the Government will feel that there is merit in that. Perhaps with one or two tweaks—a combination of some of the things discussed in this group of amendments—we could end up with something of long-term benefit that would defuse some of the adversarial nature of what we have been talking about, which is corrosive to the sector and to relationships between landlords and tenants and ultimately may end up leading us around the houses—excuse the pun—several times without achieving what we need: the long-term betterment of the landlord-tenant relationship in the private rented housing stock.

[Lord Foster of Bath]

My Lords, we seem to be discussing two slightly separate issues in this group of amendments. The first is whether or not we need to have a register of all private sector rented landlords, and I certainly believe that we need to have that. As my noble friend Lord Greaves made very clear, if we do not know who owns a particular property or who is its landlord, it is very difficult to take enforcement action against them. It is also very difficult, as the noble Lord, Lord Flight, has pointed out, for a number of bits of government legislation to be effectively enforced without having such a register—for example, the requirement for landlords to vet the immigration status of their tenants.

Amendment 27 from the noble Lord, Lord Beecham, proposes a mandatory register and suggests that the way of filling the data in it is by requiring all landlords to sign up to it. As the noble Lord, Lord Flight, has pointed out, there are some difficulties with that: those landlords who are not particularly good, those who are on the border of being rogue landlords, are not likely to bother to provide the information. The noble Lord provides an alternative means of filling the data sets: using the form that is initially sent in for registering for council tax, although, as my noble friend Lord Greaves has pointed out, that is done by very many tenants only once in a blue moon.

So there are problems with how we fill the data set, but what is most important is that we hear from the Minister whether it is the Government’s view that we should be having a national database. Whether it is run at individual local authority level or nationally I am not that concerned about at this stage, but it is important to know what the Government’s thinking is about having a database of all private sector landlords. Then perhaps we could get together from all sides of the House to work out the details of how we could fill the data set and ensure that people registered appropriately.

The second issue is local authorities operating an accreditation or licensing scheme. There is a straightforward difference between Amendment 18 from the noble Lord, Lord Beecham, and my noble friend’s Amendment 33A. My noble friend suggests that this should be voluntary and local authorities can decide whether or not to do it, while the noble Lord, Lord Beecham, is suggesting that all local authorities must do it. I make it clear that I side entirely with my noble friend. It is right and proper that local authorities do this, but it is also important that we recognise that some local authorities have already found ways of doing it; across many parts of London there is already such a scheme, and other councils—for example, by using an Article 4 direction—have been able to do that.

Still, it is important that we treat these two issues as separate: first, with regard to the list of all private sector rented landlords so that we can ensure that legislation that we pass in your Lordships’ House will be enforced; and, secondly, that we allow discretion to local authorities to decide how best they wish to operate in the best interests of the people they seek to represent in local authority areas.