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Leasehold Home Ownership: Buying Your Freehold Or Extending Your Lease

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Leasehold Home Ownership: Buying Your Freehold Or Extending Your Lease Leasehold home ownership: buying your freehold or extending your lease Report on options to reduce the price payable HC13 Law Com No 387 (Law Com No 387) Leasehold home ownership: buying your freehold or extending your lease Report on options to reduce the price payable Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by the House of Commons to be printed on 8 January 2020. HC 13 © Crown copyright 2020 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open- government-licence/version/3. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/official-documents. Any enquiries regarding this publication should be sent to us at [email protected]. ISBN 978-1-5286-1706-2 CCS 1019368652 Printed on paper containing 75% recycled fibre content minimum Printed in the UK by the APS Group on behalf of the Controller of Her Majesty's Stationery Office The Law Commission The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Green, Chairman Professor Sarah Green Professor Nick Hopkins Professor Penney Lewis Nicholas Paines QC The Chief Executive of the Law Commission is Phil Golding. The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG. Professor Sarah Green and Professor Penney Lewis were appointed Law Commissioners on 1 January 2020. The terms of this report were agreed on 12 November 2019 when Professor David Ormerod QC and Stephen Lewis were Law Commissioners. The text of this report is available on the Law Commission's website at http://www.lawcom.gov.uk. All websites footnoted in this report were last visited on 16 December 2019. i Table of Contents Glossary vii Summary 1 - 31 CHAPTER 1: INTRODUCTION 1 This Report 1 What is leasehold ownership? 2 What are enfranchisement rights? 5 What are premiums? 5 The views and opposing interests of landlords and leaseholders 6 Views on the fairness of enfranchisement premiums 7 The difference between premiums and professional costs 8 Two broad methods of calculating premiums 9 Our project 9 Our Terms of Reference: options for reducing premiums, not recommendations 10 Sufficient compensation and human rights 11 Leaseholders’ human rights 12 Landlords’ human rights 12 The options for reducing premiums in this report 14 The Consultation Paper and consultation events 15 How we have dealt with consultation responses 15 Issues beyond our Terms of Reference 17 Welsh devolution 18 Structure of this Report 19 Summary of the options for reducing premiums in this Report 20 Publications accompanying this Report 21 Acknowledgements 21 The project team 21 CHAPTER 2: CALCULATING PREMIUMS UNDER THE CURRENT LAW 23 Introduction 23 (A): The current valuation methodology 26 (1) The “term” 27 (2) The “reversion” 31 (3) Marriage value 33 Summary 38 ii Development value, additional value and other loss 38 Potential alternative bases for assessing market value 39 (B): The current valuation process 40 Introduction 40 Stage 1: valuations for advice 40 Stage 2: valuations for negotiation 41 Stage 3: valuations for Tribunal determination 45 Conclusion 45 CHAPTER 3: ARGUMENTS ABOUT REFORM 46 Introduction 46 (1) Opposing views on whether leasehold ownership is inherently unfair 46 (2) Problems with the law governing the calculation of premiums 49 Problems with the current law 49 Practical consequences of those problems 54 Problems for leaseholders with onerous ground rent obligations in their leases 63 Summary 64 (3) Arguments for and against reducing premiums 64 The competing interests of leaseholders and landlords 65 Different types of leaseholders and landlords 66 Landlords’ arguments against reducing premiums 67 Leaseholders’ arguments in favour of reducing premiums 71 CHAPTER 4: LAW AND VALUATION: OUR ROLE AND GOVERNMENT’S ROLE 78 Introduction 78 Setting the legal framework and process for valuation 78 The route to valuation reform 78 (1) What should the overall valuation framework be? 78 (2) What is the correct methodology for assessing “market value”? 79 (3) If rates are prescribed, by what process should they be set? 80 (4) If rates are prescribed, what should the rates be? 80 Consultation responses about valuation methodology 80 The correct method for assessing market value 80 The correct rate or relativity graph 81 Conclusion 84 CHAPTER 5: POSSIBLE NEW VALUATION “SCHEMES” TO REDUCE PREMIUMS 85 Introduction 85 Overview of the “schemes” set out in this chapter 85 Setting premiums by reference to a simple formula 87 iii A multiplier of ground rent: Option 1A in the Consultation Paper 87 Set percentage of freehold value: Option 1B in the Consultation Paper 93 Setting premiums by reference to market value 95 The Consultation Paper 95 Consultation responses 97 A revised approach: from “components” to “assumptions” 101 Who would benefit from Schemes 1, 2 and 3? 106 Scheme 1: assumption that the leaseholder is not in the market and will never be in the market 107 Scheme 2: assumption that the leaseholder is not in the market, but may be in the market in the future 112 Scheme 3: assumption that the leaseholder is always in the market 116 The potential role of a simple formula 117 CHAPTER 6: “SUB-OPTIONS” FOR A NEW SCHEME TO REDUCE PREMIUMS 122 Introduction 122 Overview of the sub-options set out in this chapter 122 Reform to elements that would (or could) reduce premiums 123 Sub-option (1): Prescribing rates 124 What do we mean by prescription of rates? 124 The benefits of prescribing rates (at, or below, market levels) 125 The benefits of prescribing rates below market levels 128 Consultation responses concerning prescription of rates 129 A culture change: moving from individual tailored valuations to general valuations 130 Prescription of capitalisation rates 134 Prescription of deferment rates 138 Prescription of relativity (or the no-Act deduction) 142 Compatibility with A1P1 of prescribing rates 147 Conclusion: options for Government relating to prescription of rates 148 Can FHVP values be prescribed? 154 Sub-option (2): Treatment of ground rent 154 The significance of ground rents for landlords and leaseholders 154 The Consultation Paper 156 Consultees’ views 157 Compatibility with A1P1 of a cap on ground rent in the enfranchisement valuation 160 Conclusion: options for Government 161 Sub-option (3): Development value 165 The Consultation Paper 165 Consultees’ views 167 Alternative mechanisms to provide an election restricting development 169 Compatibility with A1P1 of enabling leaseholders to elect to take a restriction on development 170 Conclusion: options for Government 171 iv Sub-option (4): Differential pricing for different types of leaseholder 172 The Consultation Paper 172 How can a distinction be drawn in practice? 172 Consultees’ views on differential pricing 174 Compatibility with A1P1 of differential pricing for different types of leaseholder 176 Conclusion: options for Government 177 Reform to elements that would, by themselves, increase premiums 177 Sub-option (5): 80-year cut-off in respect of marriage value 179 The Consultation Paper 179 Consultees’ views 179 Conclusion: options for Government 181 Sub-option (6): Discount for leaseholders’ improvements 183 The Consultation Paper 183 Consultees’ views 184 Conclusion: options for Government 188 Sub-option (7): Discount for the risk of holding over 189 Current position 189 Consultees’ views 190 Conclusion: options for Government 193 Conclusion 193 CHAPTER 7: WORKING TOWARDS AN ONLINE CALCULATOR 194 Introduction 194 The benefits of an online calculator 194 Reducing the variables by prescribing rates 195 The remaining variable: FHVP value 196 How is the FHVP value relevant to the calculation of enfranchisement premiums? 197 Conclusion 199 The status of an online calculator 199 Consultation responses 200 Consultees in favour of an online calculator 200 Consultees opposed to an online calculator 201 Conclusion 205 How should an online calculator be established? 205 Conclusion 206 CHAPTER 8: COMBINING THE NEW VALUATION “SCHEMES” WITH THE DIFFERENT “SUB-OPTIONS” FOR REFORM 208 Introduction 208 Summary of the schemes and sub-options 208 v Adopting one scheme with a combination of sub-options 210 CHAPTER 9: SECTION 9(1) VALUATIONS 212 Introduction 212 The current law 212 Current qualification criteria: when does the original valuation basis apply? 212 Current valuation methodology: what is the original valuation basis? 213 Applying section 9(1) in practice 215 Problems with the current law 217 Ascertaining which houses qualify for valuation under section 9(1): problems with the current qualification criteria 217 Calculating the premium under section 9(1): problems with the current valuation methodology 218 The Consultation Paper 219 Consultees’ views 220 Should the section 9(1) 221 Discussion and options for reform 226 Options not put forward for Government 227 (1) Extending section 9(1): should the original valuation basis under section 9(1) be extended across all enfranchisement claims? 227 (2) Abolishing section 9(1): should section 9(1) be abolished entirely without any form of replacement? 227 (3) Replacing section 9(1) with equivalent provision 229 Options put forward for Government 238 (1) Retaining section 9(1) 238 (2) Replacing section 9(1) with an entirely new scheme providing a favourable valuation basis for low value properties 240 CHAPTER 10: SUMMARY OF OPTIONS TO REDUCE PREMIUMS 245 APPENDIX 1: LIST OF CONSULTEES 249 APPENDIX 2: TERMS OF REFERENCE 257 APPENDIX 3: CALCULATION OF PREMIUMS FOR THE WORKED EXAMPLES (HOUSES 1 TO 4) 262 APPENDIX 4: SECTION 9(1) MODELLING 271 vi GLOSSARY “1967 Act”: the Leasehold Reform Act 1967, which gives leaseholders of houses the right to buy their freehold or extend their lease.
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