Leasehold and Commonhold Reform

Lord Barwell Excerpts

Tuesday 20th December 2016 Commons Chamber

[The Minister for Housing and Planning (Gavin Barwell)]

I congratulate my hon. Friend the Member for Worthing West (Sir Peter Bottomley) and the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) on securing this really important debate. I also thank the Backbench Business Committee for granting their request. Both hon. Members have shown over the years a real dedication to leasehold reform, and I appreciate their advocacy not only for their constituents, but for prospective and existing leaseholders across the country.

As we have heard, there are more than 4 million leasehold homes in England. That figure represents an important and significant proportion of the housing market. It is also a growing proportion of the housing market: 43% of all new build registrations in England and Wales in 2016 were leasehold.

[Jim Fitzpatrick]

I apologise for intervening on the Minister so early in his speech; we look forward to hearing what he has to say. May I remind him that it was campaigning by LKP and others that got the DCLG to review the figure and change it from 2.1 million to 4.1 million? The hon. Member for Worthing West (Sir Peter Bottomley) has already called for a statistical review, because LKP thinks that the figure is closer to 5.5 million and might even be higher. The number to which the Minister refers, which is a significant part of the housing market, may be even bigger.

[Gavin Barwell]

The hon. Gentleman makes his point forcefully. Whatever the actual figure—clearly, the work that was done resulted in the increase to which he refers—I think we can all agree that it is a significant part of the housing market, particularly in Greater London, which he and I have the privilege of representing.

Leasehold legislation has been amended on many occasions over the past 50 years to improve leaseholder rights, including the right to extend their lease, appoint a new manager, challenge unreasonable service charges and purchase the freehold. All of that legislation has helped, but it clearly has not solved the problem, which is probably a lesson for all of us. Why has it not solved the problem? I think that we can point to two clear things. First, the legislation is seen by many as complex, as a number of hon. Members have said, and that can cause problems for leaseholders and freeholders alike. Secondly—the hon. Member for Brentford and Isleworth (Ruth Cadbury), who spoke on behalf of the Opposition, referred to this—the 2016 national leasehold survey showed that 57% of leaseholders either somewhat or strongly agree with the statement:

“I regret buying a leasehold property”.

That is a pretty sobering statistic.

We should accept at the outset that, whatever changes we make to the law, and whatever system we have for managing properties where a number of people have an interest in the land, some tension is inevitable. Even in those countries that have a commonhold system, some people in a particular block of flats might be keen for further improvements to be made, while others, who might be more financially challenged, might be more nervous about their service charge bills.

The hon. Lady said that she was concerned that I was going to respond by saying that the concerns that we have heard are just exceptions that do not represent the real problem. I assure her that the leasehold survey shows that they are not exceptions and that there is a widespread problem that needs to be addressed. I was asked directly whether I felt comfortable with the current situation. I assure hon. Members that I most certainly do not feel comfortable with the level of concern right across the country. Indeed, I am very keen to explore how we can promote greater transparency and fairness, and to work with all interested parties to improve leaseholders’ experience of home ownership.

This is a timely debate because it has highlighted concerns that others have raised, including the Law Commission as part of its consultation on the 13th programme of law reform. We are working closely with the commission and will use the examples raised today in our discussions with it.



I want to consider the issue of houses being sold as leasehold, which my hon. Friend the Member for Worthing West and the hon. Member for Ellesmere Port and Neston (Justin Madders) have mentioned. Leasehold has been a part of the housing market in this country for decades, even centuries. In the right circumstances, with the right safeguards, it can serve both leaseholders and freeholders well. As we have heard today, however, that is often not the case.

Analysis by LKP suggests that nearly 9,000 houses were built and sold last year as leasehold. Some have no shared services or estate management functions. In fact, they seem to exist only to create a reliable income stream from the ground rent, permissions to alter the property, and selling on the freehold at some point in the future. Developers can maximise their return by selling the freehold interest to the leaseholder at a higher value after they have moved in, or by selling it to a third party without informing the leaseholder. That is a critical point: if a freeholder wishes to sell a leasehold flat, the leaseholder has the right of first refusal, but that right does not extend to those in leasehold houses.

Those practices are not illegal, but it seems to me, and to the Secretary of State, to be one of those cases where there is a gulf between the letter of the law and our sense of what is right. Some of the cases that we have seen in the media and heard about today have highlighted some truly appalling behaviour. The Secretary of State and I have been looking closely at the issues raised in recent weeks and we are both absolutely determined to stamp out unfair, unjust and unacceptable abuse of the leasehold system.

A number of references have been made to Taylor Wimpey’s announcement that it will address some of our concerns about its use of leasehold. I am keen to hear more about what it plans to do, not just to stop such practices in the future, but to help homeowners who are currently stuck with ground rents rising much faster than inflation. The hon. Member for Ellesmere Port and Neston made that point powerfully. The leaseholder does not have to be very far into the lease in order to be stuck with that problem, which relates not necessarily to their actual payments at that point in time, but to their ability either to extend the lease or to sell the property to someone else.

[Justin Madders]

It is welcome that this practice is not going to continue, but my constituents are anxious to know what the Government can do to deal with the onerous conditions that exist in leases already.

[Gavin Barwell]

I do not have an answer for the hon. Gentleman today, but I assure him that the Secretary of State and I are looking into this issue. We are very clear that it is not just a matter of stopping this practice; we must also address the situation of hard-working people who believe that they have bought their home, but who may find themselves unable to sell that home further down the line. I give the hon. Gentleman the clear assurance that we are looking at the issue.

[Sir Peter Bottomley]

May I ask the Minister to consult his officials and others on whether there is scope for declaring such a condition to be an unfair term and having it written out?

[Gavin Barwell]

There are a number of different ways in which the issue can be addressed. It is a difficult issue, because although the clear mood in the House is that the practice is unfair, it none the less interacts with the property rights of the freeholder, and those rights have some protection under the European convention on human rights. We need to think about the right way to address the problem. I will certainly reflect on the suggestion that my hon. Friend has made, and other suggestions have been made during the debate.

We should not be under any illusions. The problem does not just concern one company; a number of our larger developers are involved in it. They would do well to remember that they are building homes for people to live in, not investment vehicles for financial institutions. Except in a very few exceptional circumstances, I cannot think of any good reason for houses to be built on a leasehold basis. If the industry does not put a stop to the practice and help existing homeowners, we will look to see what Government can do.

Historically, ground rents were set at around one thousandth of the lease value, sometimes increasing every 25 or 33 years. They existed only to create a contract between the freeholder and the leaseholder. However, in recent years, ground rent levels for new leases have increased, as has the frequency of increases. Research by Direct Line suggested that the average ground rent is now £371 for new builds and £327 for older properties.

My immediate concern is the level and frequency of increases in ground rents. We have heard today about one developer selling a lease with a ground rent starting at just under £300 in 2011 and doubling each decade for 50 years, so that by 2061 the annual cost will reach almost £9,500. The purchaser was not made aware of the escalation by their solicitor, who was recommended by the developer. The purchaser is now unable to sell the property, and the cost of extending the lease or buying the freehold is prohibitive.

Of course, there is a degree of caveat emptor when we buy a new house, but we all know that our housing market is a seller’s market at the moment and the advantage lies firmly with the developer. Just because they can sell desperate people something does not mean that they should be doing so. Institutional and other investors increasingly see ground rents as an alternative to equities and bonds, but leaseholders see no return or value in ground rents, especially when they can rise to onerous levels. Obviously, Members on both sides of the House welcome institutional investment into our housing market, but I would much rather institutional investors put their money into productive projects instead of just hoovering up ground rents because they are seen as a safe bet. Both this House and the Government want to hear more from the developers about what they are going to do to put the situation right.

I turn briefly to commonhold, although Members will probably be aware that the Ministry of Justice is the lead Department for this matter. Commonhold was intended to be a voluntary alternative to long leasehold ownership. As we heard from the hon. Member for Brentford and Isleworth, it was introduced by the last Labour Government in 2002 with good intentions, but it has had very limited take-up. There are several explanations as to why. Developers have not favoured the model, and leaseholders have found it a complicated process. Commonhold can be created only where all the owners of the land in question agree to its creation, so it is for developers to decide whether to build commonhold, or for everyone with a shared interest in an existing block to agree to convert to commonhold and to agree their commonhold community statement.

I know that several Members have pressed strongly for commonhold and continue to do so, arguing that it is a better alternative to leasehold arrangements. Commonhold is one way forward in considering improvements for leaseholders, but we also need to look at what we can do to change the existing system. There have been calls for responsibility for commonhold to be transferred from the Ministry of Justice to my Department. That would require a machinery of government change, and it has been agreed with Ministers that we will have a look at that in the new year.

I hope I have made it clear that the Government accept that there is a lot to do in this area. If the House will forgive me, I would like to say a few words about the things we have already done to improve matters and to ensure that there is easy access to remedies when things go wrong. In the Housing and Planning Act 2016, we introduced two important measures to help leaseholders to exercise their rights and to ensure that they are not ripped off by unscrupulous landlords. Members will probably be familiar with the Landlord and Tenant Act 1985, which allows a tenants association made up of “qualifying tenants” to seek statutory recognition. Such recognition provides the tenants association with additional rights over and above those enjoyed by individual leaseholders, including, crucially, the right to be consulted about the appointment of managing agents, to be notified of works proposed by the landlord and to receive copies of estimates.

[Ruth Cadbury]

I am grateful to the Minister for pointing out the right to be consulted under the Housing and Planning Act 2016. Does that extend to the right to have a veto?

[Gavin Barwell]

The 2016 Act does not give a right to veto, but it gives improved powers to residents associations. Groups have had some difficulties in exercising those powers. If the hon. Lady will give me a second, I will try to explain what we seek to achieve.

Section 130 of the 2016 Act will make a big difference to residents associations, which are finding it difficult to obtain the number of members needed to help them to apply for statutory recognition and the additional rights that that brings. It will do so by requiring a landlord to supply to the secretary of a residents association information that would allow contact to be made with absent leaseholders for the purposes of increasing the association’s membership and therefore its likelihood of achieving recognition.

Another important aspect of the Housing and Planning Act 2016, concerns a landlord’s recovery of litigation costs from leaseholders as administrative charges, which the hon. Member for Poplar and Limehouse raised. He gave a pretty horrific example from his constituency of how that is being abused in a particular case. At present, where a lease allows a landlord to recover the costs of legal proceedings through the service charge, a court or tribunal can decide to restrict the amount that can be recovered in that way. Courts or tribunals do not have similar powers where recovery of the costs of proceedings as an administration charge is permitted by the lease.

[Jim Fitzpatrick]

indicated assent.

[Gavin Barwell]

The hon. Gentleman is nodding; that is the situation in the case that he mentioned. That can lead to unfairness, because the leaseholder will have no choice but to pay the costs of proceedings as an administration charge, regardless of the proceedings. That discourages leaseholders from exercising their rights to challenge the amount of a service charge, particularly as the landlord’s costs in the proceedings could well exceed the amount that is being disputed. The commencement planned early in the new year of section 131 of the Housing and Planning Act will enable the tribunal or court to consider, on application by the leaseholder, whether it is reasonable for a landlord to recover all or part of those costs.

The complicated nature of leasehold can make it challenging for people to ensure that they follow the correct legal procedures. To help leaseholders to navigate through the system, the Government provide access to free, independent legal advice and information through the leasehold advisory service, or LEASE, as it is known. My hon. Friend the Member for Worthing West referred to it in his speech. Last year, Government provided LEASE with more than £1 million of funding, and 850,000 people across the country benefited from free advice.

[Siobhain McDonagh (Mitcham and Morden) (Lab)]

May I, through the Minister, thank LEASE for all the work that it does to help my constituents, and for always being willing to attend residents’ meetings to give advice when people feel all at sea about this complicated area?

[Gavin Barwell]

I am very grateful to the hon. Lady for her intervention. It is good that people are paying tribute to LEASE for the important work that it does, and which I know is very much valued by people right across the country.

I want to reassure the House that the Government remain committed to ensuring leaseholders have the best professional advice available to them. Given its increasingly important role, I want to make sure that LEASE is properly equipped to offer help to everybody who needs it. Particularly in the light of the comments made by my hon. Friend the Member for Worthing West, we will look again at how it works, its funding model and its membership.

In conclusion, this well-informed debate has raised important issues affecting millions of people in this country. We take all the issues raised very seriously, as I hope has been indicated by the tone of my speech. We have a strong interest in making sure that the system works as effectively as possible, and we are looking at suggestions for alternative systems, but this issue clearly needs attention. The motion states that the House “has considered” this issue, and I want to reassure my hon. Friend that it will be considered by the Government and that we will come back in the new year with proposals on how to tackle it.