Leasehold and Freehold Reform Bill (Second sitting)

Andy Carter Excerpts

Committee stage
Tuesday 16th January 2024 Public Bill Committees

[Mike Amesbury]

Q In September, Sheldon Mills, an executive director at the FCA, issued a strong statement:

“Insurance firms must now act in leaseholders’ best interests and ensure that their policies provide fair value.”

Now I will give you a live case, which happens to be in a neighbouring constituency to mine. It is called The Decks. They have a remediation day and Taylor Wimpey has accepted responsibility, yet insurance premiums are going up again—poor value and high cost, as I think was cited in the review. New year was going to be a new broom to intervene and shape the market, yet you have got insurance companies like this, and many more up and down the country, laughing at people in this room—key stakeholders such as yourselves. What are you going to do? What powers have you got to intervene? Also, we have discussed insurance. Are clauses 31 to 33 in part 3 sufficient to deal with the issue?

Matt Brewis: Our new rules around ensuring that these products are fair value came into force on 31 December last year. The cost of insurance of multiple-occupancy buildings has increased, and our report of 2022 found that this was not an area where insurers were making significant profits, or super-profits, of any form because of a number of different parts—around fire safety risks, but more to do with some of the structural issues around the quality of the buildings and how they had been constructed. Escape of water was something that was causing significant losses in these buildings.

We found some of the biggest issues around the brokerage charges, which were increasing, and the payaways—payments that insurance brokers were making to property managing agents for services that they were apparently providing for them. So our new rules require them to be very clear what value they are providing and how they are doing that as brokers, as managing agents, and for that to be made clear to the leaseholders. We are undertaking reviews of those with a number of firms. This will provide leaseholders with more information so that they can challenge their freeholders, so that they can challenge the insurers and the brokers at a tribunal if necessary.

Where this Bill goes one step further is that although, as I have explained, we are not responsible for the managing agents or the freeholders, by effectively banning those payments of any commissions, as the Bill does in the clauses that you mention, it will go significantly further than I can with the powers that the FCA has to restrict the payments to other parties and therefore to reduce the cost to leaseholders. In my view, this is in line with the recommendations that we made in that report and results in a better product—a cheaper product—for leaseholders.

[Andy Carter (Warrington South) (Con)]

Q This morning, we heard from the founders of the National Leasehold Campaign about some of the poor practices that their members had told them about. Do you think that provisions in this Bill make it easier for consumers? Do they address the challenge of transparency and the ability to obtain information from freeholders in a way that will be noticeable to owners of leasehold properties?

Matt Brewis: In terms of the provision of information, yes. And it goes alongside the rules that we have introduced that require brokers and insurers to pass information to the freeholder to pass on to the leaseholder. This further tightens up that. It allows for leaseholders to take their freeholders to tribunal to reclaim costs, as necessary, that have been incurred. So this does go further, and I welcome that.

[Andy Carter]

Q With regard to the redress element, again, it is a small, individual leaseholder taking a ginormous freeholder, managing agent, or whatever, to court. There is an imbalance there.

Matt Brewis: Yes.

[Andy Carter]

Is that suitably addressed in this legislation?

Matt Brewis: We have talked with the Department for Levelling Up, Housing and Communities about how to do that. The tribunal is a mechanism, but from talking to leaseholders, we recognise that taking a firm to court is a big step for anyone. There are a number of routes that strengthen that in this Bill, and we welcome that, albeit—

[Andy Carter]

Q So are there no other ways that the balance of power could be shifted to make it easier for the small homeowner who is facing the challenge of dealing with something that is far, far bigger than themselves?

Matt Brewis: There are other mechanisms—an alternative dispute resolution mechanism—that we have seen used in some parts of financial services. The Financial Ombudsman scheme is one, where it is not a legal test; it is more of a fairness test about how you are treated as a consumer. But the tribunal is another mechanism—the insurance part is a very narrow part of a much wider piece, and I am not equipped to talk more broadly about the leasehold ownership structure.

[Andy Carter]

No, that is helpful. Thank you very much.

[Barry Gardiner]

Q Mr Brewis, I think we all welcome the FCA’s work to try and make things more equitable for leaseholders, so thank you for your endeavours there. I am sure you will be familiar with the Riverside case from before Christmas, in which it was discovered that an FCA-regulated broker could not provide a written contract of the insurance to the first-tier tribunal. Do you find that strange?

Matt Brewis: I cannot talk about individual cases. However—

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[The Chair]

I am mindful of the fact that we will have to bring this session to a conclusion at 3.40 pm and five more Members have indicated that they would like to speak, so you can time yourselves accordingly. I will start with Andy Carter.

[Andy Carter]

Q I will be brief. Cathy and Halima, can I pick up on your point about estate management? Do you have any examples of members of your forum who are paying fees on a regular basis, but there is no delivery of management? Do you have examples of where things are just not happening?

Halima Ali: I am the perfect example. I have living on a fleecehold estate for 13 years.

[Andy Carter]

Q Can you tell us what is not happening?

Halima Ali: There is no management happening at all.

[Andy Carter]

Q What should be happening?

Halima Ali: It should be managed.

[Andy Carter]

Q Yes, but tell us what you would expect to be happening.

Halima Ali: The management company should respond in a timely manner, do the work and communicate with the residents. The situation is horrendous. On our estate alone, we are paying £30,000 to maintain a field that is half the size of a football pitch. That makes no logical sense.

[Andy Carter]

Q So they are not cutting the grass and they are not tidying—

Halima Ali: They are cutting it, but at a substandard level. On top of that, the grounds that they are maintaining have not even been built to a standard for local councils to adopt.

[Andy Carter]

Q Have you talked to the council about its ability to be involved in this?

Halima Ali: I have had meetings with the head of planning. I have raised so many complaints.

[Andy Carter]

Q What did the council say?

Halima Ali: They just do not want to know, literally, because they are not regulated and it is not their concern. They just will not do anything.

[Andy Carter]

Q The problem we will find, if we are not careful, in putting through legislation that allows the right to manage is that there is still no route to get somebody to make things happen if you have a council that does not want to get involved. Who is the ultimate person that you can say—

Halima Ali: It has to be central Government. They need to regulate that councils need to start adopting all new build estates going forward and in the situation that we are stuck in.

[Barry Gardiner]

Q Halima and then Cathy, let me pick up this business of the fleecehold estates, as you refer to them. They are a relatively new thing in leasehold; they were not there in the same way 20-odd years ago when we were passing the Commonhold and Leasehold Reform Act 2002. They have been seen as a revenue stream for developers. Do you think that it would make sense for local councils, when they sell public land for housing development, to insist that that public land should not be used for a private estate model in this way? Developers can of course build the homes and you can buy them, and they can make their profit from the payments that you make to buy those homes, but they should not then have an ongoing source of revenue from the substandard management, as you described it, of the estate.

I have one estate in my constituency where they were charging residents for the management of land that they did not even own. It took us months to get the documentation to prove that they did not own that land. The fence that they had mended had actually been mended by the council. Other things like that are going on, but if that restriction were put in place in the first place, they would not be able to do it, would they?

Cathy Priestley: Our understanding is that the land belongs to the developer. It is not public until it is made public through section 106 agreements with the council.

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[The Chair]

Otherwise, my name is Chloe Smith. I am temporarily chairing the session to allow for a very short break.

[Andy Carter]

Q I was really struck by your comments around the natural education process of buying and selling houses. You are quite right; most of us probably do it once or twice in our lifetimes, and we do not know the questions we need to ask. We rely on conveyancers and those in the legal environment to give us that information. Looking at the Competition and Markets Authority’s report on mis-selling, it strikes me that some really shady practices have been going on. Beth, I will ask you this question first: what would be in an up-front pack if we were to mandate to say, “If you are going to sell a leasehold house, this is everything we need to know about”?

Beth Rudolf: What you have in there is the energy performance certificate; the title to the property, including a plan and any documents referred to in the title, such as a lease or a conveyance containing covenants; the searches—the local authority search, the drainage and water search and environmental data, which will tell you whether the property is impacted by coastal erosion or flooding; and the BASPI, or the buying and selling property information, which is completed by the seller and provides information about their understanding and ownership of the property.

You verify the identity of the seller digitally to ensure that they are the person registered as the proprietor to avoid seller impersonation fraud, through which people have lost £1.3 million. Those are the things that you need available. For a shared amenity property with a leasehold or managed freehold estate rent charge, you also need that shared amenity information—the LPE1, or the leasehold property enquiries form, and the FME1, or the freehold management enquiries form.

[Dame Caroline Dinenage in the Chair]

[Andy Carter]

Q That is the bit that I am glad you got to, because that seems to be the bit that gets forgotten with leasehold properties. What are the ongoing service charges—what are you paying your money for and when do you pay it? Constituents who have purchased leasehold properties tell me that they have not been told about that.

Beth Rudolf: It is about building safety. Is remediation required? What will be the impact on you? How much will you have to contribute? Are you a qualifying leaseholder? How the hell do we know?

[Andy Carter]

Q Is that something you think we should be mandating for people buying a leasehold? Should that be in the Bill?

Beth Rudolf: For any house, yes, absolutely. It needs to whack up the material information under the Consumer Protection from Unfair Trading Regulations 2008, which impact estate agents by saying, “These are the prescribed documents.” The home report in Scotland shows that that is pretty much what they have done. They have 60% fewer fall-throughs than we have and their transaction time is much faster. If we can go that way, it will absolutely deliver. When estate agents and conveyancers have worked together to deliver this already, it has knocked transaction times from 22 weeks to 10 weeks and fall-through rates have plummeted.

Kate Faulkner: Obviously, I work right across the property industry, from self-build to the leasehold side, and a lot of the work that has been done, including the rent reform and the work that has been done here, focuses on what happens after. For me, there is a problem with property from a consumer perspective, because there is a shortage of properties and owning a property is such a complex thing. You cannot compare it to buying a toaster—it often is, but please let us get rid of that.

For property to work for consumers who are moving, buying property or selling after deaths, divorce and so on, you have to make sure we have no bad freeholders, no bad landlords and no bad or poorly qualified agents. The good thing about the leasehold Bill is that you are doing some of those things. The Renters (Reform) Bill is not doing those things; most of it is after the event, but that is too late because consumers have to put a roof over their head and get their kids into school, so they will compromise on their rights. They will compromise when they are told, “You need to understand this information from your conveyancer, which means you should pull out of this deal.” We therefore have to put the protection in first. We must regulate agents and make sure the bad elements cannot be there. There is such a massive scale, ranging from the brilliant people I work with right through to the criminal, and we have to move everybody up.

Beth Rudolf: Just to catch you there, because we are short on time, the regulation of qualifications is a key point.

[Andy Carter]

Q I was going to ask you about that. Is the Bill sufficiently robust in that area at the moment?

Beth Rudolf: No. It is wonderful that you are opening up the jurisdiction of the tribunal, but it still does not cover administration charges—I have talked about how ridiculously expensive they are—and their duplication. The point is that, as Kate says, the consumer is not educated, and nor is the estate agent. The material information guidance has come out, but none of the estate agents knows about it. When conveyancers ask them whether they can help them prepare the summary of the material information, the estate agents say, “Well, why? What are you talking about?” They have no idea.

The point is, as Andrew says, that we want to put a fence at the top of the cliff, not an ambulance at the bottom. The tribunal is the ambulance at the bottom; regulation of property agents is the fence at the top. That will ensure all people are educated, including the consumer, the estate agent and the property manager, and we also need to include the landlords and the developers in that. They need to be regulated too, because otherwise it is all going to slip through the net. The enterprise reform regulations do not incorporate anything where you are not instructed to work on behalf of somebody else, so your landlord is not going to be regulated, and they already do not have to be part of a redress scheme. Bringing these things in will help with education, so that they know what they are supposed to do and they will not make these mistakes that cause people to have a nightmare in their own homes.

[Andy Carter]

Q I have one more question, if I may. In relation to the challenge of estates not being adopted by councils, I am conscious that you may not know a great deal about this—

Beth Rudolf: No, I have so much to tell you about this. In Worcester, the county authority has a £35 million overspend on adult social care. Because of that, it is not putting any money into the adoption of public open spaces. It is not putting any money into supporting those. It will absolutely look for developers that will take on those open spaces, create these estate rent charges and make a bit of wonga by collecting all that money.

[Andy Carter]

Q In your experience, is this driven by councils?

Beth Rudolf: It is council resources, as much as anything. Then, on top of that, developers see it as being a financial asset, because they continue to have an economic interest in that land by gathering the referral fees, the commissions on the insurance and things like that.

[Andy Carter]

Q Finally, do you have any data on how many of these estates are not adopted and are being operated in that fashion? Is there any knowledge around that?

Beth Rudolf: All I can tell you is that currently the council that I am aware of will not adopt anything. The dowry that it used to receive for adopting is no longer enough to cover the cost of bringing it up to an adoptable standard and, as was mentioned before, if the developers leave before bringing it up to an adoptable standard, you are completely stuffed: there is no resourcing and no money available to fund this.

[Andy Carter]

Q The challenge that we are going to face is that we are going to build hundreds of thousands of homes over the next however long, and how those estates are looked after and the cost—

Beth Rudolf: Bring in commonhold. Enable commonhold on managed estates, because then people will at least have their control. With commonhold, you immediately get people saying, “You don’t have professional property managers running it.” Well, require that, when the commonhold association takes over, it has in place a professional, regulated property manager with a limited contract, so that the association can tender for a replacement if it turns out that that estate manager is not good. That means that you are starting to drive it on the basis of customer satisfaction: if you do not do it fairly, well and reasonably, the commonhold association is going to replace it. We did a survey of the commonholders—

[Andy Carter]

I am conscious of the time. Others may want to—

Beth Rudolf: I know, but I was going to say that the commonholders did not complain about being commonholders. Some of them had been leaseholders, and they said that they would prefer to be commonholders.

Kate Faulkner: One of the things from the developers’ side—and I was not clear about this—has to do with where this leaves people with shared ownership, because you cannot have two-tiered systems. The housing associations and shared ownership should be as protected with these rules and regulations, because, unfortunately, not all housing associations do a good job.

Beth Rudolf: One more thing: the ground rent capping referenced in the Bill requires the lease to be a qualifying lease, so it will not impact leases under 150 years. But the majority of the mis-sold leases with onerous terms and escalating ground rents were well under 150 years. They will not be touched by this, so that needs to change.

[The Chair]

Thank you very much. I do not think there are any further questions, so I thank you both very much for attending today.

Examination of Witness

Professor Tim Leunig gave evidence.

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[Lee Rowley]

Q Thank you. I have a final question. I know that you were not here all day, but we have heard some very compelling testimony and questions from colleagues about the potential for going further and adding things to the Bill. Next week, we will get into a discussion, as colleagues know, about what we can do and the practicalities of that; we are not going to be able to do everything. However, we think that a very sensible set of propositions have already been put forward. If you had to prioritise, where would you go first in terms of additions, because there is a necessary prioritisation that needs to come in next week’s discussions and on Report?

Professor Leunig: The only prioritisation meeting I had was with the current Secretary of State for Levelling Up on the LURB—the Levelling Up and Regeneration Bill —because the first draft of the Bill had twice as many clauses as could get through Parliament. We had a meeting for about two hours with the Secretary of State and each part was read out, including what its intention was and how many clauses it required. That is the cost-benefit analysis.

If I say to you, for example, “The lady before said 150 is too big”, I would agree with her; I imagine that is a very sensible change to make. By contrast, I am sure that other people have said, “Go for commonhold for everything in future”. That strikes me as requiring a lot more clauses than the number that would be required to change the 150 figure to 99, or 75, or something.

What I urge you to do is to ask the lawyers—the people drafting the legislation—how many clauses would each change that has been proposed cost. Then you think, “Okay, we can probably manage another 24 clauses”, or whatever it is, “or we can change 24 clauses. Which ones do best in that cost-benefit analysis?” I do not think that it would be sensible for me to give you an answer without knowing that legislative cost.

[Andy Carter]

Q The Minister has just asked three questions to help the Committee; I wonder whether I can ask a question to help the Minister. Do you think that he should include flats within the scope of the Bill? Flats are currently excluded. What is your view on that?

Professor Leunig: Yes.

[Andy Carter]

He should?

Professor Leunig: Yes, and it is increasingly important as more and more of us live in flats. Unless we are going to make London look like Houston and stretch all the way from the white cliffs of Dover to Oxford, more people are going to have to live in flats in London. They are going to have to live in terraced houses and flats; that is just a simple, basic sense of physics and geography.

So yes, flats are going to be more important over time. I can see no reason why new flats should not be built on commonhold for anything where planning permission has not already been granted. That gives builders amply long enough. At that point, they cannot turn around and say, “Oh, but our economics were predicated on this.” You have not put in for planning permission. Do it on commonhold. Get on with it. Adjust to the new world order.

[Andy Carter]

I will leave it there. Thank you very much.

[The Chair]

I think we had a couple of follow-up questions, first from Rachel and then Richard.

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[The Chair]

And then, very succinctly, Andy Carter.

[Andy Carter]

Q My question will be very short. What are the main implications of the provisions in this Bill for the legal profession, particularly solicitors? A relatively short answer, please.

Dr Maxwell: I am not a solicitor; I am a barrister. I am not able to really comment on the main implications of the Bill for solicitors, unfortunately. That is a nice, succinct response.

[Andy Carter]

That is fine. Thank you.

[The Chair]

Thank you—I do apologise for that. Thank you very much on behalf of the Committee. That brings us to the end of this afternoon’s sitting. The Committee will meet again on Thursday to hear further oral evidence on the Bill.

Ordered, That further consideration be now adjourned. —(Mr Mohindra.)