Housing: New Developments

Lord Young of Cookham Excerpts

Thursday 17th June 2021 Lords Chamber

[Lord Greenhalgh (Con)]

My Lords, we have already looked at the approach to assessing local housing need to ensure that we see greater focus on the renewal of our cities and towns rather than urban sprawl. So we have already taken that point on board.

[Lord Young of Cookham (Con)]

Does my noble friend agree that the public would be more supportive of the proposals to build the hundreds of thousands of new homes that the country needs if more of these homes were clearly being targeted at families on average incomes, with children, already living in the area and at key workers such as nurses and teachers, with perhaps less emphasis on unaffordable homes for newcomers?

[Lord Greenhalgh (Con)]

My noble friend is absolutely right that we need homes of all types and tenures. Our reforms will give communities a greater voice from the start of the planning process. The reforms will make planning more straightforward and accessible and make it easier for people to influence local plans and have a say on locations, standards and types of development. The Government are of course committed to home ownership; the First Homes scheme allows a discount of up to 30% of full market value and, of course, there is the £11.5 billion affordable homes programme that will allow for the decent family homes that my noble friend sees as so critical.

Private Landlords: Tenants with Pets

Lord Young of Cookham Excerpts

Tuesday 15th June 2021 Lords Chamber

[Lord Greenhalgh (Con)]

My Lords, we have set out a model tenancy agreement that encourages wider pet ownership. It also ensures that the landlord must give a clear reason why they will not accept a pet. This agreement strikes a balance between making it easier for responsible tenants to keep pets and ensuring that landlords are not forced to accept them.

[Lord Young of Cookham (Con)]

My Lords, last week the Public Services Committee took evidence from a rough sleeper in Birmingham who was full of praise for the Everyone In campaign, which helped him and other rough sleepers into safe accommodation last year. However, he told us that rough sleepers with dogs were now at risk because hostels would not accept them. Is my noble friend aware of this problem and does he have a solution?

[Lord Greenhalgh (Con)]

I am aware of the issue that my noble friend raises. We know how important pets are to many people, particularly rough sleepers. That is why we have supported a number of local schemes enabling people to find accommodation that will also accept pets. Housing authorities need to be sensitive to the importance of pets to some applicants, particularly rough sleepers, and I thank my noble friend for raising this.

Leasehold Reform (Ground Rent) Bill [HL]

Lord Young of Cookham Excerpts

Committee stage
Monday 14th June 2021 Grand Committee

[Lord Naseby (Con)]

My Lords, I think most legislators would agree that there should always be a review of legislation. Unfortunately, that has not always happened in the past, and I have put down a number of amendments to certain Bills to say that there should be a review. But quite frankly, to have a review within 30 days is totally unrealistic; it is far too fast. Given that we have Christmas holidays, Easter holidays and bank holidays—and even the occasional pandemic, with people working at home—I am sorry to say that proposed subsection (1) in Amendment 19 is not the least bit viable.

However, when we move on to Amendment 20, we come to a more realistic basis: that within six months of the Act being passed a review of its financial impact on leaseholders must be carried out. That is eminently sensible and a reasonable length of time. The Minister may have a different view, but looking at it from the outside—again, I speak as someone who has been involved in housing matters—I would have thought that it was a reasonable length of time.

Whether proposed subsection (2) in Amendment 20 is correct, I am not sure. It says:

“The review must make a recommendation”.


I do not think it is the point of a review that it “must” do something. The whole point of a review is that it should look at all aspects of whatever it is reviewing and then make recommendations. That is a technicality, but it seems a more sensitive way of doing it.

I make one further point on the fire remediation work. I think Her Majesty’s Government, and this Government in particular, have tried very hard to get a grip on this very difficult area. One sees daily the outbreak of fire because of cladding, and each one seems to be different. I do not have the experience or the wisdom to know whether Her Majesty’s Government are doing enough in this area. I would appreciate from my noble friend, as would Parliament, a regular update on exactly what is happening on cladding. There is a great deal of confusion out there and clarity would help us all.

I was fascinated by Amendment 21A from my colleague the noble Lord, Lord Berkeley. I am conscious of having visited the model village that was formed in the Duchy of Cornwall—I cannot remember its name but I think it is in Dorset.

[Lord Young of Cookham (Con)]

Poundbury.

[Lord Naseby (Con)]

Yes, thank you so much.

I declare an interest in that I happen to own 40 acres around my home. Somebody suggested the other week that maybe a small bit of this—say five acres—might be a help to the housing market. I certainly would not think of having it on a leasehold basis. If I am going to build houses in the interests of the community in Bedfordshire, they will be sold, because if something is sold the family involved have real ownership. When they own their home it is not a disincentive but an incentive to do something good for their home; it is in their interests. I suspect that it is a disincentive to do so for most leaseholders.

I think the noble Lord is right to ask the question. I think he said that he sent three letters to the Duchy. The least that the Duchy should do is come back to the questions he asked. I hope that will go on the record. I say to my noble friend on the Front Bench that none of these are black and white, other than the fact that there should be a review within the six-month period.

--- Later in debate ---

Moved by

[Lord Young of Cookham]

21: Clause 22, page 13, line 29, leave out from ““rent”” to end of line 29 and insert “means rent reserved as such including any part of the rent, whether or not expressed to be in consideration of services to be provided, which is fixed or which varies or may vary by reference to any one or any combination of a specific amount, a specific period of time or a specific measure, disregarding any part of the rent expressed to be payable in consideration of services to be provided which varies or may vary in accordance with the cost of the services provided, or of the variable cost of repairs, maintenance or insurance to be effected by the landlord and which varies or may vary in accordance with the cost of the repairs, maintenance or insurance in question, or to be payable in respect of the cost thereof to the landlord or a superior landlord;”
Member’s explanatory statement
This amendment probes whether the Government can improve the definition of “rent” for the purposes of the Bill. It is derived from definitions in the Leasehold Reform Act 1967 and the Landlord and Tenant Act 1985. It is extended to include fixed service charges and index-linked service charges akin to monetary ground rents.

[Lord Young of Cookham (Con)]

My Lords, one of the themes in our debate on Second Reading was the need for a clear definition of what exactly a ground rent is. In addition to those who have taken part in Committee, I recall the contribution of my noble friend Lord Hammond of Runnymede, who drew on his experience in this area to outline some issues about definition. The helpful briefing that we have all had from the Law Society has as its first priority the need to amend the definition of rent in the Bill. It says:

“The main issue with the Bill at present is the failure to distinguish between different types of rent. Although the Government’s clear intention is to tackle ground rents alone, the Bill does not make this focus clear.”


During the proceedings this afternoon, I have had a further email from Mr Hugo Forshaw of the Law Society saying that he is supportive of the spirit of my amendment; he has offered support for a tweaked amendment on Report because, apparently, mine is not absolutely perfect, in his view.

Amendment 21 deals with this important issue. We need an effective and clear definition if the legislation is to work in practice. There is no current clear definition. Clause 22(2) says:

“‘rent’ includes anything in the nature of rent, whatever it is called”.

If I may say so, that is reminiscent of the controversy about self-identification and the context of gender identification—that if you say something is the case, then it is. The Government’s current approach will, I fear, result in litigation to determine the scope of what counts as ground rent. While such litigation is ongoing, leaseholders will have to continue to pay ground rents in all but name to avoid forfeiture. It is therefore essential that there is a workable definition from the day this legislation is commenced, without leaseholders needing to engage in litigation with landlords to establish that definition.

I listened to my noble friend the Minister’s point at Second Reading that the drafting of “rent” had been left deliberately wide so as to avoid providing a target for landlords to work around, but I am not sure this is wise. The drafters of our tax legislation face similar challenges, for example, yet manage to achieve a greater degree of precision than has been achieved here. There is value in ensuring that future leaseholders and their advisers can determine with certainty what is and what is not ground rent. That way, they can at least seek amendments to a proposed lease to avoid ever agreeing to pay a disguised ground rent. This broad definition risks capturing sums often reserved in the lease as rent, and therefore called rent, which may be perfectly legitimate service charges or insurance contributions. As my noble friend Lord Hammond said at Second Reading, they risk capturing market rents granted under a long lease, which is not the Government’s intention.

Leading law firms have echoed the Law Society and my noble friend Lord Hammond in requesting a clear definition of ground rent, lest there be serious unintended consequences. For example, Herbert Smith Freehills says:

“As currently drafted, the form of the legislation does not differentiate between ground rent and any other kind of rent: in short, anything reserved as rent (eg service charge, insurance rent) would be cancelled and unenforceable. Similarly, there is no reference to the rent being of the nature of a ground rent, so if the lease exceeds 21 years, there would, as the Bill currently is drafted, be no way of granting a long residential lease without a premium and at a market rent. We expect these points are likely to be addressed as the Bill proceeds through Parliamentary readings.”


The definition I offer is based on that found in Section 4 of the Leasehold Reform Act 1967, which is also the definition recommended by the Law Society. But I have added to that definition words that relate to any fixed charge, or a charge which varies or may vary by reference to an amount of money, a fixed measure—for example, RPI inflation—or a period of time: for example, a charge which doubles every 10 years. The aim of this drafting is to include within the definition of ground rent any charge that does not vary in accordance with the cost of providing a service or an item. This is done using the well-known and well-understood definition of “relevant costs” in Section 18 of the Landlord and Tenant Act 1985, for which there is already much case law.

The wording of Amendment 21 is deliberately extended to include fixed service charges, for which currently leaseholders have no means of redress. At least one set of barristers’ chambers—Landmark Chambers—has already identified this as a potential weak point in the legislation, allowing ground rents to continue in a different guise. The aim of this drafting is to ensure that charges made in exchange for a tangible service, which may vary in accordance with the cost of a tangible service, are not within the definition of ground rent. That reflects the Government’s policy, as set out in the Explanatory Notes. This strikes a necessary balance between bona fide service charges reserved as rent and any attempt to circumvent the ban on monetary ground rents by adding fixed service charges or index-linked service charges, or escalating fixed service charges which function as ground rents but which are not given that label.

My noble friend may say that, as the Bill applies only to future leases, some of these uncertainties can be resolved by drafting new standard leases for future use. But if either this Bill is amended or a future Bill implements government policy to enable existing leaseholders to buy out their ground rents, this definition may well be used to cover existing leases, so the need for clarity is even greater.

Paradoxically, the existing definition may catch items that are not ground rents— the case mentioned by my noble friend Lord Hammond—but may not capture fixed service charges that should be caught. On that basis, I beg to move my amendment.

[Baroness Grender (LD)]

My Lords, the definition of rent is an area that requires detailed scrutiny when looking at loopholes during the passage of the Bill. As we heard from the noble Lord, Lord Young of Cookham, at present, as drafted in Clause 22(2),

“‘rent’ includes anything in the nature of rent, whatever it is called.”

This wide definition has set alarm bells ringing. We therefore strongly support this probing amendment by the noble Lord, Lord Young.

As I described in the debate on the first group of amendments today, this is a billion-pound industry which will not let its grip on the market go lightly. It relies heavily on borrowed money to acquire freeholds, all secured on the basis of future ground rents. With the potential of a “rent” unpaid and forfeiture as the pot at the end of the rainbow, we need to make sure that there is some very specific detail in the Bill as to what “rent” means.

The danger is clear, especially on forfeiture, as defining any service charge as “rent” means it must be paid to avoid that forfeiture before a leaseholder can even protest or start to take legal action against the amount charged. The Leasehold Knowledge Partnership has warned that “rent” or a contractual arrangement, as we heard from the noble Lord, Lord Young, could take the form of a fixed payment for arranging buildings insurance or for appointing and supervising the managing agent. Can the Minister say whether, for instance, it is possible to include in a future lease a payment of, say, £200 per year rising in line with CPI inflation as a payment for the landlord’s expenses in arranging buildings insurance if that exists as a fixed service charge rather than a prohibited ground rent caught by the new law? Does he accept or recognise that it would not be possible for leaseholders to challenge that payment as the law stands or is proposed in the Bill? What measures has the Minister’s department taken to ameliorate this all-important issue?

The Bill says that no rent under a lease other than a peppercorn is permitted unless the lease is one of the types of lease excepted from the Bill. But in the Explanatory Notes we are told that the Act is intended to capture any payment under a lease that does not impose an obligation on the landlord to provide a service. LKP trustee Liam Spender put it this way:

“In modern leases, and modern case law, ‘rent’ often has a broader meaning. Many modern leases will define ‘rent’ as including both ground rent and service charges. Some modern leases also specify separate ‘insurance rents’ to cover the costs of buildings insurance arranged by the landlord. It is uncertain if the bill intends to force future leases to be redrafted so that these provisions are no longer described as part of the ‘rent’, or if the bill is not intended to capture these provisions because they are payments for tangible services.”


I look forward to the Minister clarifying some of those points.

--- Later in debate ---

[Lord Greenhalgh (Con)]

My Lords, this amendment from my noble friend Lord Young seeks to capture within the definition of rent other charges, such as fixed service charges, if they are reserved as rent in leases. It also seeks to exclude from the definition of rent variable charges or insurance if they are reserved or form part of the rent. The comments on a proposal regarding the definition of rent received from my noble friend Lord Young and other noble Lords continue to be carefully considered. I am very grateful to all those who have given it such close examination and look forward to hearing the further deliberations from the Law Society.

This is an important point to discuss today, as the treatment of what is meant by a ground rent and a rent lies at the heart of what the Government wish to convey through the Bill. It sets the tone for leasehold reform legislation to follow. On the specific meaning of rent, I am not unsympathetic to my noble friend Lord Young’s intention in his amendment. Since the very outset, this Government have been alert to defining what is meant by a ground rent in such a way as to discourage avoidance activity by sectors of the property market which make a habit of such activity. I believe we are all agreed that preventing such activity is of the utmost importance.

To give noble Lords some more of the context behind our reasoning for this definition, we started from a similar position to many of the Committee when approaching this issue by seeking to define closely what is meant by a ground rent. It is a logical approach; tightly drawn definitions are often meat and drink to a strong legislating body such as this House. However, I ask your Lordships to reflect on the seeming ease with which some parts of the leasehold sector have found ways around generation after generation of leasehold legislation, drafted with the greatest care and scrutinised in both this House and the other place, as my noble friend Lord Young knows well.

After very extensive consideration, we have concluded that we would need to take a different approach to the definition of rent for the leasehold sector. We therefore purposely defined rent widely to prevent landlords avoiding the restrictions in the Bill by including spurious periodic changes under any other name. As stated at Second Reading, the Bill intentionally uses a wide definition so that it includes anything in the nature of rent, whatever it is called. For example, we are mindful of not wanting to allow for a new garden rent or parking space rent replacing ground rent after the Bill is passed. That is why the meaning of rent in the Bill is drafted in such broad terms.

Any change faced by leaseholders that looks and sounds like a rent, whatever it is called, will therefore be open to challenge through trading standards and the First-tier Tribunal. Freeholders, landlords and even managing agents acting on behalf of a landlord will be able to refund this rental charge, whatever it is called, and may face a penalty fine. This imposes a potential liability on managing agents and ensures that they will scrutinise future contracts with great care.

We agree that it is not necessary for a lease to reserve charges, such as service charges and insurance, as rent. Under the Bill’s definition of rent, landlords will need to consider whether to itemise other charges separately in the lease. I point out that fixed service charges are a valid way for freeholders to charge for services where leaseholders and freeholders enter into a lease agreement. We are aware of criticism of the misuse of fixed service charges on occasion; these charges are generally in payment for a tangible service and differ from ground rent. Under the Bill, landlords will need to consider whether to itemise these in the lease agreement, and to be clear what the charge is and what a leaseholder receives in return.

I thank my noble friend Lord Young for raising the points made previously by my noble friend Lord Hammond of Runnymede. He raised two specific points, one on the definition of a ground rent for long leases over 21 years where a rack market rent is charged. I welcomed my noble friend Lord Hammond’s thoughts on this and am happy to undertake today that my officials and I will continue to engage with him and others as we look further into this matter. My noble friend Lord Hammond also raised a point on intermediate leases where there is a head lease or multiple properties. I point out that there are a number of potential options to address the complexities in this scenario. Once again, I am grateful to him for raising this issue and will continue to explore the matter further before Report.

Above all, I welcome the efforts of my noble friend Lord Young to achieve our shared objective of a clear definition of rent. However, I fear that my noble friend’s amendment would add complexity and provide opportunities for landlords to find workarounds to a Bill otherwise closed off by the simple definition it currently contains. I am interested to see what the Law Society comes up with and to see the revised drafting.

In response to the noble Lord, Lord Lennie, we have engaged with a number of NGOs and stakeholders in preparation for the Bill and I am happy to provide details of that in writing. While I appreciate the intention behind my noble friend’s amendment and I am happy to continue discussions with him, I ask him to withdraw his amendment.

[Lord Young of Cookham (Con)]

My Lords, I am grateful to all those who have taken part, as this is a modest Back-Bench amendment which has generated three Front-Bench responses. The noble Baroness, Lady Grender, reminded us that there is a lot of money riding on the definition of ground rent; there are huge financial instruments at stake. We do not want a shaky foundation for that market.

I listened to the Minister’s reply. I will say only that he has so far failed to convince the Law Society or the lawyers I referred to, who do not believe that the broad definition adopted by his department is the right way to proceed. I am not sure that I was reassured by the Minister saying that, if there was any doubt, tenants could go to tribunals. The whole point of the amendment is to try to avoid doubt and grey areas and reduce the need for litigation.

At the beginning of his response, my noble friend said that his department continues to carefully consider the issue of the definition and that he was not unsympathetic to what I was trying to do. I am grateful for those responses. On the basis that discussions will continue between the noble Lord, Lord Hammond, and the department, the Law Society and the department, and indeed, those solicitors who have expressed serious doubts about the current definition, I am happy to withdraw the amendment.

Amendment 21 withdrawn.

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, before I speak in strong support of Amendment 26, I raise an issue on commencement, which I think I raised at Second Reading—namely, whether it is possible to have different commencement dates in England and Wales. It is not entirely clear from Clause 25, as I read it, whether one could specify different dates and whether the possibility exists, for example, for the Welsh Assembly to come to the Minister and say, “We would very much like this Bill to be enacted in Wales way ahead of what you are minded to do in England.”

I turn to Amendment 26. During our first Sitting, my noble friend said:

“In order to move on to further legislative action on leasehold reform, we need to get this Bill through as speedily as possible.”—[Official Report, 9/6/21; col. GC 283.]


When he replied to Amendments 19 and 20 this afternoon he repeated that imperative for speed. This need for a swift passage has been behind the resistance to amendments even when, as we discovered last week, it was an amendment that delivered government policy.

As my noble friend Lord Blencathra said, the force of the Government’s argument is weakened if they will not give a firm date for implementation. All we know is that retirement homes will not be affected for another two years. It seems entirely reasonable for my noble friend Lord Blencathra to argue, as in Amendment 26, for a quid pro quo: swift passage in return for swift implementation.

The other leg of the Government’s argument has been, “Don’t worry if this Bill doesn’t do everything. Another one is right behind.” I expressed some scepticism about this last week; we are still waiting for stage 2 of Lords reform promised in 1997. I know my noble friend’s heart is in the right place but all he has been able to say is that stage 2 will be later in this Parliament, which is scheduled to last until December 2024. That legislation could then have a later enactment date, as this Bill does, so I think it fair to press the Government for clarity. Why not publish a draft Bill later in this Session and introduce it in the next one?

I end with a comment that adds weight to this need for clarity. This Bill was introduced in your Lordships’ House and has had a relatively easy ride, but the other place is full of MPs under pressure from leaseholders in their constituencies. Even the at times assertive language of my noble friend Lord Blencathra will pale in comparison with what Ministers will hear in the Commons, so I strongly urge my noble friend to develop what is known in the trade as a concession strategy on dates if the Government really do want to see the Bill proceed to the statute book without delay.

[Baroness Grender (LD)]

My Lords, I am really confused by the Government’s approach on this. It seems to be summarised as follows: “Give us this Bill as quickly as possible so that we can take as long as we can and as long as we like to implement it.” The problem is that there is a whole load of future leaseholders out there—and more importantly the marketplace, which believes that this lacks clarity.

Please do not take my word for it. I was reading a blog by Gary Murphy, an auctioneer on behalf of Allsop, which at the moment sells almost half of all London ground rents traded at auction. He notes the intention for this to change over a very long period of time, in the Landlord and Tenant Act 1987, the Leasehold Reform, Housing and Urban Development Act 1993 and the Commonhold and Leasehold Reform Act 2002. He goes on to say:

“Before freeholders panic, and new investors smell blood, we have to remember that reforms in this area have been on the cards since 2017. Recent announcements have amounted to little more than a press release. Whilst effective in courting headlines, they have changed nothing for the immediate future.”


The critical issue is that the marketplace, which needs to be convinced the most that this change is imminent and about to happen, is even less convinced than the noble Lords from whom the Committee has heard this afternoon. Until it is this market will continue, even if it is traded at slightly lower reserves.

Leasehold Reform (Ground Rent) Bill [HL]

Lord Young of Cookham Excerpts

Committee stage
Wednesday 9th June 2021 Grand Committee

[Lord Blencathra (Con) [V]]

My Lords, I will, for a change, be very brief, not least because there are a number of amendments in this group in the name of my noble friend Lord Young of Cookham which give a practical way forward and are far superior to mine. I declare a personal interest as someone who pays £602 ground rent per annum on my London flat. While that is a disgraceful rip-off, for no services given, it pales into insignificance compared to the horror stories I heard at Second Reading about leaseholders hit with escalating ground rents running to tens of thousands of pounds.

At Second Reading, I attempted to use mockery to draw attention to the fact that the English leasehold and ground rent laws are an absolutely prehistoric abomination which should not exist in a top G7 country these days. I also said that I fully support this Bill and will do nothing to hold up its becoming law. The only problem is that it does not go far enough and does not deal with the injustices for all those caught up in the current ground rent racket. The peppercorn rent solution, ridiculous though that term now is, does in fact give justice to all future leaseholders, and I welcome that. Amendments 1, 2 and 11 simply apply that same just principle to the current racket. If it is right and just that all future leaseholders, who have not lost a penny, are protected from this evil racketeering, then surely it is far more important to deliver justice to all those who are being ripped off at present, some for extortionate sums, as the House heard at Second Reading. Amendments 1 and 2 simply say that all current ground rents will become peppercorn rents, just as the Bill does for future rents. Amendment 11 offers an alternative, setting a ceiling on the amount which may be demanded in ground rent per annum and giving a refund to leaseholders who are being ripped off by ground rents above £1,000 per annum.

I suspect that my noble friend the Minister will say that this is a very complicated subject, that the Government are working on solutions and that we will see the full details next year in the leaseholders Bill. I accept that my amendments take an absolutist, purist approach, but I do like the detailed, sensible amendments tabled by my noble friend Lord Young of Cookham, which may offer a compromise—letting leaseholders buy their freedom. As my noble and learned friend Lord Mackay of Clashfern will confirm, since he is a far better scholar of ancient Roman law than I ever was, in ancient Roman times slaves could buy their freedom, but very few could afford to buy their manumission. Most were freed by testamentary manumission—that is, in the will of their master—and Caesar Augustus regulated the system. So I call on my noble friend the Minister to become the new Caesar Augustus and set free the millions of leaseholders still paying their salarium.

If the Minister cannot accept my amendments, I would like to hear exactly what is wrong with Amendments 7, 8, 12, 17 and 18, proposed by my noble friend Lord Young of Cookham and Amendment 5 in another group, in the name of my noble and learned friend Lord Mackay of Clashfern. They seem to me to be an excellent way to remove this 800-year-old injustice, bring justice to leaseholders and not deprive freeholders of some of their entitlements. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I will speak to Amendment 12 and its consequential Amendments 7, 8, 17, 22 and 23. Their effect is broadly the same as Amendments 1 and 2, in the name of my noble friend Lord Blencathra, whose speech I commend. Whereas he was able to express himself in four lines, I am afraid that my amendments have taken up four pages. The amendments also achieve the same as Amendment 5, which we will come to later, in the name of my noble and learned friend Lord Mackay. However, his amendment reserves all the detail set out in mine to the discretion of the Secretary of State, in regulations, and is time-limited. The amendments standing in my name, if accepted, would give a right to buy out ground rents for ever, beginning on 1 January 2023.

As my noble friend Lord Blencathra has just said, the Bill as drafted applies only to future leases, coming into force on such a day as the Secretary of State may appoint by regulations. It does nothing to help existing leaseholders or anyone who buys a lease with a ground rent before the commencement date, but it is government policy that existing leaseholders should have the right to buy out their ground rents. I refer to the Written Statement by the Secretary of State on 11 January this year:

“I am confirming that the Government will give leaseholders of all types of property the same right to extend their lease as often as they wish, at zero ground rent, for a term of 990 years.”


Later comes the crucial commitment:

“We will also enable leaseholders, where they already have a long lease, to buy out the ground rent without the need to extend the term of the lease.”


The obvious question for the Minister, raised by these amendments, is why the Leasehold Reform (Ground Rent) Bill does not deliver government policy on ground rents. Why should we have to wait for the next piece of legislation to honour the commitment? On waiting for promised legislation, I am once bitten, twice shy. As Opposition spokesman in another place, when the hereditary Peers were removed, I was assured by the then leader of the House that stage two of House of Lords reform would be in place for the first round of elections to your Lordships’ House, by 2001. Twenty years on, I am still waiting.

There is still no firm commitment from the Government on when the Bill will come into force and, the longer the Government leave setting a date, the greater the risk that new monetary ground rents will continue to be created. The Government could stop this by indicating even a provisional date for this legislation to come into force, which would shift the bargaining power in favour of prospective purchasers of leasehold properties. That is why Amendment 22, in my name, prescribes a date of 1 January 2023 for this right to buy out ground rents to come into force.

The case for giving existing leaseholders this right was well made by the Law Commission. They took head on the counterargument that this right is unnecessary because leaseholders can extinguish the ground rent by extending their lease. I quote from Law Commission paper 387, entitled Leasehold Home Ownership: Buying your Freehold or Extending your Lease. Paragraph 3.63 of the consultation paper states:

“we explained that the 1993 Act right to a lease extension has been criticised for requiring leaseholders simultaneously to extend the term of their lease (and therefore pay the landlord for the deferral of the reversion) and to extinguish the ground rent (and therefore pay the landlord the value of the remainder of the original term). We noted suggestions that leaseholders should be able to choose between extending their lease, extinguishing their ground rent, or both, in order to reduce the premium payable on the lease extension.”

The paper continued:

“Support for the introduction of a right to extinguish the ground rent under a lease without extending the lease (whether alone, or together with the right discussed immediately above) was widespread. Consultees who supported this option included various professional bodies, the majority of commercial freeholders, a majority of firms and individual professionals, and a significant majority of leaseholders and other individuals.”


I continue to quote from the report, which states:

“Generally, consultees’ reasoning for supporting a right to extinguish the ground rent without extending the lease focussed on the predicament of leaseholders who are subject to onerous or doubling ground rents in long or very long leases. Both professionals and leaseholders explained that these leaseholders have no need to extend their lease term (which may be as long as 999 years), but wish to buy out their ground rent before it becomes onerous, and/or to make their property saleable. It was said to be ‘pointless’ to require them to claim an extended lease term purely to solve this problem.”


The report goes on to say:

“Several consultees considered that, given the forthcoming ban on ground rents in the majority of new leases, the right to extinguish ground rent in an existing lease (which is very long and does not require extending) would help to avoid the creation of a ‘two-tier’ market, consisting of leases with ground rent and those without. This argument was most persuasively made by a number of leaseholders from 1 West India Quay Residents’ Association. Pointing out that media coverage of the ground rent scandal has led prospective buyers to scrutinise ground rent obligations much more closely, Antonio De Gouveia wrote: ‘If Government is to cap or eliminate ground rents on new leases (which we think they will do), then there is even more reason for new legislation from the Law Commission to enable all leaseholders in our building to buy out their ground rent (onerous or not)’.”


I note in passing that the point about a two-tier market was made in the helpful briefing for the Bill from the Law Society. This all led the commission to its conclusion in paragraph 3.108:

“We recommend that leaseholders who already have very long leases should be entitled to extinguish the ground rent payable under their lease without also extending the term of the lease.”


My amendments deliver that. They have been drafted so that costs are kept to a minimum. No valuation is required because proposed subsection (6) of Amendment 12 sets out the terms, based on Law Commission examples. There is no prejudice to enfranchisement rights and timescales are set out to prevent any delay by the freeholder.

My amendment also addresses a different complaint raised by the Law Commission, namely that the current process for statutory leasehold extensions is too long and cumbersome. Landlords have options to game the system to make it as difficult as possible for leaseholders to exercise their rights. Look at paragraph 2.23 of Law Commission report 392.

My Amendment 12 therefore seeks to give effect to the Law Commission’s recommendations for simplification by proposing a straightforward way in which to buy out monetary ground rents without the need for notice and counter-notice, as exists under the current legislation. There will be nowhere for unscrupulous landlords to hide if the approach suggested in this group of amendments is adopted.

My Amendment 17 provides for the First-tier Tribunal to have jurisdiction in dealing with any issues arising from the exercise of the rights given by Amendment 12 and mirrors the provisions in Clauses 13 and 15. Amendment 12 goes further, in that it would also permit the tribunal at its discretion to award damages to a tenant denied rights to buy out a monetary ground rent, which is intended to serve as a deterrent to landlords denying such rights. Amendment 22 brings in the commencement date of 1 January 2023, giving those involved time to make the necessary preparations. Amendment 23 is consequential.

Why not use the Bill to give an option to millions of existing leaseholders, rather than wait for another Bill that deals with ground rents? There is no disagreement on policy, and here we have the vehicle. I await the response from my noble friend the Minister and hope that he will set the tone for this Committee by looking favourably on this first group of amendments.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

I have received a request to speak after the Minister from the noble Lord, Lord Young of Cookham.

[Lord Young of Cookham (Con)]

I am very grateful to the Minister for his reply. I press him on what he said right at the end about the importance of getting the Bill through “as speedily as possible”. I accept that, but if it is important that Parliament processes this legislation speedily, is it not then incumbent on the Government to announce an early date for the implementation of the Bill?

[Lord Greenhalgh (Con)]

My Lords, we want to move as speedily as possible but, as I stated in my reply, we do not want to set a deadline for things. We want to get this on the statute book very speedily in this Session; that is why it is so early in this Session. That is my answer.

--- Later in debate ---

Moved by

[Lord Young of Cookham]

3: Clause 2, page 1, line 22, leave out paragraph (b)
Member’s explanatory statement
This amendment is to probe the application of the Bill where premises are part business and part residential.

[Lord Young of Cookham (Con)]

My Lords, Amendment 3 in my name is designed to shed light on what the Government mean by premises that significantly contribute to “business purposes”. We may move into less turbulent territory in this group.

I begin by asking the Minister a fairly basic question: if ground rents are, as I believe, a feudal anachronism or, in the words of my noble friend Lord Blencathra, “legal racketeering”—a payment for which one gets nothing in return—why are they being banned only for future dwellings and not for all premises? Surely a combination of a lease and a conventional rent would suffice for the commercial sector and we could simply strip Clause 2 out of the Bill entirely. This may go beyond my noble friend’s negotiating brief but, if we are to have this distinction, we need some clarity.

By way of background, when I put the Leasehold Reform, Housing and Urban Development Act on the statute book, one of the most contentious issues was the exemption from enfranchisement of mixed-use buildings, with shops on the ground floor and flats above. After a healthy dialogue between the two Houses, when your Lordships’ House still had a healthy representation of the country’s freeholders and the other place was concerned more with leaseholders who actually had votes, we ended up exempting properties where the commercial use was 25% or more of the total space. That Act was about the collective enfranchisement of a building, whereas this Bill is about individual leases within a building, so the same definition may not work. There is, none the less, the same need for clarity and, with the current definition, I can see scope for argument and the possibility for a freeholder to introduce a ground rent by arguing that the leases in his building qualify for Clause 2 exemption.

Suppose, for example, a new block of flats is specifically designed so occupants can work from home. The developer not only builds in all the relevant infrastructure in each flat but has a communal space on the ground floor that can be hired as a conference room to get around Clause 2(3). Could he then claim exemption and include ground rents in all the leases in the flats?

I was grateful to my noble friend for the time he spent with me on Monday, when he explained that the object of exemption was where a ground-floor shop had a flat above it and it was essential, for the efficient operation of the shop, for the shopkeeper to live above it. Perhaps the parliamentary draftsmen had in mind publicans, who often live above licensed premises. My concern remains that the wording is too loose, so it can provide loopholes and give rise to litigation. I wonder whether, between now and Report, my noble friend could consider an alternative and tighter wording. I beg to move.

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

I call the next speaker, the noble and learned Lord, Lord Mackay of Clashfern. Lord Mackay, could you unmute, please? Lord Mackay? Perhaps I can return to him. In the meantime, I shall call the next speaker, the noble Lord, Lord Stunell.

--- Later in debate ---

[Lord Young of Cookham (Con)]

My Lords, I am grateful to all those who have taken part in this short debate. I welcome what the Minister said in his reply, that he would undertake to reflect on it between now and Report to see whether there is a better definition. I am not sure whether we have dealt adequately with the case raised by the noble Lord, Lord Stunell, where, as I understand it, because a parking space is not a dwelling, it is not covered by the Bill. The Minister said he was going to reflect on whether that represented a loophole in that a developer could let a property separately from a parking space. The noble Lord also raised the issue of where you have a communal parking space that can be used by both the residents living nearby and the visitors to the shops, and whether the developer of the parking area could charge both the residents and the shops a ground rent for the use of the communal parking space.

The only other point I wanted to raise was whether my noble friend the Minister could give me an assurance on the specific example I gave, where a developer included in the block of flats a conference facility on the ground floor, and whether he could then argue that the nature of the business purposes permitted by the lease significantly contributed to the business purposes, and whether he could argue to everybody who bought a flat in that development that because they could access the conference room and whatever other facilities might be on the ground floor, therefore all the flats could be exposed to a ground rent. I do not expect my noble friend to give me a reply off the cuff but I would be quite interested in a response to that specific example if he could give it between now and Report.

On that basis I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

Rogue Landlords Register

Lord Young of Cookham Excerpts

Wednesday 26th May 2021 Lords Chamber

[Lord Greenhalgh (Con)]

There is no complacency; I am merely outlining that we are considering the introduction of the register as part of our commitment to introduce a White Paper in the autumn. That will contain a number of measures designed to redress the balance between landlord and tenant.

[Lord Young of Cookham (Con)]

My Lords, I commend the excellent report Journeys in the Shadow Private Rented Sector by Cambridge House, which reveals the extent of organised crime in the murkier parts of this market: criminals who are wholly undeterred by local authority sanctions; the obliging of tenants who feel defenceless to pay their rent in cash; and police who are ill equipped to deal with this criminality, not just roguery. Will the Government respond to the report’s recommendations, such as the better detection of unlicensed HMOs and better monitoring of online platforms advertising private rentals?

[Lord Greenhalgh (Con)]

The report that my noble friend refers to provides valuable insights, highlighting illegal evictions and behaviours by the most criminal and irresponsible landlords and agents. Such reports will be very helpful in developing our proposed reforms. We will be publishing the White Paper in the autumn and continuing to work with these stakeholders, who have valuable knowledge in these matters.

Social Housing

Lord Young of Cookham Excerpts

Monday 24th May 2021 Lords Chamber

[Lord Greenhalgh (Con)]

It is not all about demand-side subsidies. We have pointed out that the Government are committed to increasing the supply of affordable housing and are investing over £12 billion in the affordable housing programme over the next six years, which is the largest investment in affordable housing in a decade.

[Lord Young of Cookham (Con)]

My Lords, we all agree that more social homes should be built and I welcome my noble friend’s statement, but does he agree that, for every one family housed in a newly built home, roughly eight are housed in the relet of existing stock? In addition to building more new homes, will my noble friend promote home ownership schemes for existing social tenants who want to move out and buy, thus freeing up a home for those in housing need?

[Lord Greenhalgh (Con)]

I agree with my noble friend that social mobility and social housing are critical, and that social housing can and should be a springboard into home ownership. We will look at promoting many of the schemes that he outlines, including our offer for shared ownership.

Leasehold Reform (Ground Rent) Bill [HL]

Lord Young of Cookham Excerpts

Monday 24th May 2021 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, like others who have spoken, I very much welcome this Bill. It is another step along the road of reform that, as my noble friend Lord Blencathra said, began in 1967 with the Leasehold Reform Act, which gave tenants of houses the right to buy the freehold. That was followed in 1993 by the Leasehold Reform, Housing and Urban Development Act, which gave leasehold tenants of flats the right collectively to buy the freehold.

I modestly remind the House that I put that piece of legislation on the statute book nearly 30 years ago. The junior Minister who skilfully piloted it through your Lordships’ House was my then youthful noble friend Lord Strathclyde. This was subsequently amended by the Commonhold and Leasehold Reform Act 2002, which introduced commonhold. In my view, the destination of this journey should be the eventual elimination of leasehold. Here I agree with my noble friend Lord Blencathra, who spoke without restraint a few moments ago about the feudal form of tenure, which exists nowhere else in the world and has no place in a modern society.

Switching metaphors, the Bill before us today is the appetiser for the main course—a more comprehensive piece of legislation to remove some of the inequities of the present leasehold system, which I look forward to and, along with other noble Lords, hope will not be delayed too long. I accept what my noble friend the Minister said right at the beginning: that we should not use this piece of legislation to shoehorn in parts of the more substantial legislation that I hope will follow soon. I applaud the role that my noble friend the Minister has played behind the scenes in moving this whole debate forward. While I am delighted that many builders such as Barratt Homes have abandoned ground rents and are establishing resident management companies, not all are following—hence the need for the Bill.

As many noble Lords have said, although the Bill has “Ground Rent” in the title, nowhere in the Bill is this defined; I will refer to that again in a moment. However, given that “Ground Rent” is in the long title, the Government could have included in the Bill the Law Society’s recommendation that existing leaseholders should be able to buy out ground rents. At the moment, they can in effect extinguish the ground rent but only by extending the lease, which of course involves paying a premium. Many may not be able to afford this but they could buy out the ground rent on the basis suggested by the Law Commission. Might my noble friend include that as a government amendment in Committee, which I am sure would be very popular?

As I said, the Bill does not define “ground rent”; this was raised in the Zoom meeting that the Minister was kind enough to hold with a number of us last week, and it is being raised again today. Clause 22 is headed “Interpretation”. It tells us what a dwelling and a peppercorn rent are, but not what ground rent is. Instead, it says that

“‘rent’ includes anything in the nature of rent, whatever it is called.”

That is very broad and, as my noble friend Lord Hammond said, may capture other elements that are not ground rents. What it calls a “permitted rent” is defined in Clauses 4 to 6, but that definition may go wider than ground rent.

The Explanatory Notes say that the Act is intended to capture any payment under a lease which does not impose an obligation on the landlord to provide a service, but this is not in the Bill. However one defines ground rent—there are definitions in the Law of Property Act 1925, and the Law Society in its helpful briefing for this debate suggests another definition—it is important that ground rents do not reappear under another name. Could this happen by specifying a fixed service charge rising in line with inflation to cover the landlord’s expenses in arranging buildings insurance? This point was made by my noble friend Lord Bourne before he was excommunicated. As the law currently stands, fixed service charges cannot be challenged by leaseholders, but they could be used by freeholders as the basis for secured lending, thus perpetuating the ground rent investment industry. Also, as my noble friend Lord Hammond said, in modern leases and modern case law, rent often has a broader meaning, including ground rent and service charges. Perhaps, as the noble Baroness, Lady Andrews, suggested in her speech, the Bill intends all future residential leases to be drafted so that only the peppercorn rent is described as a rent. Perhaps my noble friend the Minister could deal with that in his wind-up.

I am also concerned at one of the exceptions in Clause 2(1)(b), which my noble friend mentioned in his opening speech. The right in the Bill does not extend to premises where the nature of the business purposes demised by the lease as a dwelling

“significantly contributes to the business purposes”.

In the case of a block that has offices on the ground floor but flats above it, where there is a head lease, does this mean that the flats are excluded from the provisions of the Bill? Speaking from memory, the 1993 Act excluded from enfranchisement premises where more than 25% was non-residential; I wonder why that definition is not used here.

On the commencement date, the noble Lord, Lord Best, made a valid point about retirement homes in the process of being sold, where there was the risk of a two-tier system of ground rents. Hopefully, Wales will move at the same pace as England, but I see that the Bill allows a separate commencement date. Perhaps the Minister can clarify.

I was going to end by saying that I did not see why we needed three days in Committee but, having listened to today’s debate, I am not sure that three days will be enough. However much time is spent in Committee, I hope that this will not delay too long the arrival of the Bill on the statute book.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Lord, Lord Thurlow, has withdrawn so I call the noble Lord, Lord Bhatia.

Rent Arrears: Covid-19

Lord Young of Cookham Excerpts

Thursday 20th May 2021 Lords Chamber

[Lord Greenhalgh (Con)]

My Lords, I point out that two-thirds of the tenants identified in the survey have two months or less of rent arrears. We have preferred to avoid encouraging further debt, instead providing non-repayable financial support through furlough and the welfare system.

[Lord Young of Cookham (Con)]

My Lords, in the debate in Grand Committee on 22 April on poverty and mass evictions I asked my noble friend whether his department would do a quick review of the schemes in Wales and Scotland of grants and loans that prevent evictions to see whether any lessons might be learned for England. He replied:

“I will encourage my officials to look at what we can learn from the devolved Administrations”.—[Official Report, 22/4/21; col. GC 402.]


What was the outcome of that review?

[Lord Greenhalgh (Con)]

My noble friend is quite right. I have asked my department to do that. My officials carefully studied the Scottish and Welsh schemes to support tenants with rent arrears. I understand that a relatively small number of loans have been made by these schemes. Indeed, the Government continue to believe that it is right to provide non-repayable financial support rather than encouraging further debt.

Leaseholders and Property Management Companies

Lord Young of Cookham Excerpts

Thursday 29th April 2021 Lords Chamber

[Lord Greenhalgh (Con)]

My Lords, we believe very strongly that any fees and charges should be justifiable, transparent and communicated effectively and that there should be a clear route to challenge or address things if they go wrong. That is why we commissioned the noble Lord, Lord Best, to do his report.

[Lord Young of Cookham (Con)]

My Lords, on 5 January, when I described leaseholders as

“a relic from a feudal age”,

my noble friend replied:

“There is no doubt that in this country we are unique in having leasehold. We need to focus on reform, which will take this forward to a position similar to that in Scotland or on the continent, where people are co-owners of their property.”—[Official Report, 5/1/21; col. 9.]


Is legislation on its way so that everyone can benefit from my noble friend’s ambition?

[Lord Greenhalgh (Con)]

My Lords, my noble friend knows that the Government wish to extend the benefits of freehold ownership to more homeowners; that is why we are establishing a commonhold council to prepare homeowners and the market for the widespread take-up of commonhold. We share that same drive and ambition to change things.

Covid-19: Poverty and Mass Evictions

Lord Young of Cookham Excerpts

Thursday 22nd April 2021 Grand Committee

[Lord Young of Cookham (Con)]

My Lords, I am grateful to the noble Lord, Lord Bird, for initiating this short debate. He mentioned that it was 30 years ago that he launched the Big Issue. I was the Housing Minister at that time, which was the first time that I met the noble Lord, and it is a pleasure to join forces with him again this afternoon in the campaign to prevent homelessness.

This debate follows on closely from Monday’s debate on the prevention of eviction order, answered by my noble friend Lord Wolfson. When he replied to that debate, he very modestly said that he was a humble Justice Minister and that many issues raised were for MHCLG, hence the welcome opportunity to follow up those issues this afternoon.

I welcome the Government’s decision to extend the ban on most evictions in effect until mid-June, which aims to strike a balance between the needs of tenants and those of landlords. I also welcome the generous support that the Government have extended to renters: the LHA increase, the UC uplift, the one-off payment of £500 and the increase in discretionary housing payments. These will enable the majority of tenants to cope, with some forbearance from their landlords.

However, as noble Lords have said, when the temporary arrangements come to an end, there will be a problem. Of course, each time the Government for understandable reasons extend the eviction ban, the greater the amount of arrears that are likely to build up. This is a particular problem for the 56% of families with arrears who are not in receipt of benefits and therefore are precluded from discretionary housing payments.

The noble Lord, Lord Shipley, had some estimates. Roughly one-quarter of a million social tenants and the same number of private renters were estimated by the Resolution Foundation to be behind with their rent in February. This poses a particular problem for the courts, which are already under pressure due to the pandemic backlog, but much more important is the problem for families facing eviction.

I know that Scotland and Wales are different, but the problems that confront private tenants with Covid-related arrears are basically the same wherever they live. The Welsh scheme was launched last autumn. The tenancy saver loan scheme is repayable over five years with interest at 1% and is operated by credit unions. It is paid direct to the landlord, and is available only if the credit union believes it is affordable. Once tenants have applied for the loan, they can access support and advice services to help them manage their financial situation. It was welcomed by housing charities and landlord representatives alike. In Scotland, they have a very similar scheme, launched last September. Its tenant hardship loan fund offers interest-free loans to those unable to access other forms of support for their housing costs.

I know there is an argument for grants rather than loans. They are simpler to administer and avoid adding to debt, but they are more expensive for the taxpayer and unfair to those tenants who made sacrifices to pay their rent while their neighbour next door, who made no such sacrifice, may get a grant to wipe out the debt. Loans avoid that moral hazard. I do not expect the Minister to change government policy when he winds up, but will his department carry out a quick review of the Welsh and Scottish schemes to see whether there are any lessons which we might learn in England?