Now this really is a piece of leasehold reform news.

The Leasehold Reform (Ground Rent) Bill received the Royal Assent on 8th February 2022, making it an Act of Parliament.

Is it in force? – no not yet

The new Act, (which is not in force yet) will apply to leasehold properties in England and Wales. It will restrict ground rent owed on new leases to a ‘peppercorn’ rent – effectively zero – and aims to make leasehold ownership “fairer and more affordable”.

When will the new act come into force?

The accompanying DLUHC press release gives a commitment to bring the main provisions of the Act into force within 6 months, in other words by 8th August of this year.

There is a carve out for the retirement sector who have until April 2023 to get used to the idea of leases without ground rents on the basis that in some retirement developments a ground rent is used to suppress the maintenance costs and reduce the service charge.

If I buy a new flat once the act is in force will I pay a ground rent?

There will be no ground rent for brand new leases (eg. New builds)

The one short term exception will be where a contract to grant the lease was granted before the Act comes into force. We might expect therefore to see some leases validly granted with a ground rent for a little while after commencement, but only under this exception.

Once in force the Act will effectively ban ground rent for all brand new leases.

In other words, any lease of a newly built flat or house will have to be at a zero rent.

The Act also contains deeming provisions so that even if a new lease is drafted with a ground rent during what is called the ‘prohibited period’ (essentially the extended term of any new lease) that the rent will be deemed to be zero, even if the lease says otherwise.

So, when a lease can have a ground rent? – On renewal by agreement – but only in the old lease term

Section 6 of the Act permits a new lease that is granted by way of renewal or extension on a voluntary basis to keep a ground rent but then only during the old lease term and at the old rent.

This will have a big impact on those freeholders who like to keep a ground rent on any voluntary extension of a new lease. All that will be permitted now is to keep the old ground rent (whatever this was) until the date on which the old lease term would have expired.

What does this mean in practice?

To give an example: if a lease has a term of 99 years from 1980 and expires 2079, then if a deal is done to extend that lease by another 100 years so that it runs out in 2179, then the new lease can keep the old ground rent (whatever that was) until 2079, but after that any new rent must be zero.

In addition, the old rent cannot be increased and must remain exactly as it was under the old lease.

What about other extensions?

Any extension under statute will be at a zero rent in any event, as this is what the 1993 Act prescribes and the Act makes plain that this type of extension is a ‘permitted extension.

There are exemptions for ‘Islamic finance’ type arrangements and also ‘shared ownership’ leases under which the tenant’s proportion must be at zero rent but that the landlord / housing provider may charge whatever rent they would normally charge in respect of the rental element.

What if a landlord doesn’t comply?

The act is quite specific that the local authority weights and measures department has responsibility for enforcement and that fines can be imposed. The minimum fine is £500 and the maximum £30,000.

In addition, if a ground rent is collected when it shouldn’t be once the act is in force then the rent must be repaid to the leaseholder with interest. An example would be if a new lease is erroneously granted with a rent provision in the extended lease term – or at a rent that exceeds the old rent.

What will be the impact of the Act?

In an earlier version, the Act included an obligation to inform the tenant about the existence of the Act and its provisions. These provisions did not make it into the final version Act

However, the very existence of the Act itself, once in force, will surely push more leaseholders to ask for a lease at a zero rent on extension and / or go down the route of a statutory extension if this is not offered.

All this means that the writing really is on the wall for ground rent.

Commentary

Once in force, this Act will be a big step forward towards the government’s proposed agenda for change in this area.

Ending ground rent for newly built leasehold flats and houses will go a long way towards avoiding any repeat of the so called ‘leasehold scandal’ where doubling of ground rents on newly-created leases created an iniquitous situation for homeowners who had been sold leasehold houses with an escalating ground rent.

However, this Act does not deal with the banning of the use leasehold on an ‘unnecessary’ basis as a tenure for houses, as was originally promised by the then housing minister Sajid Javid. That question together with the prospect of wider reform is still ‘in discussion’ and it remains to be seen how and when such further changes will be acted upon by government.

This is of course all part of a wider programme to make leasehold unattractive for new properties and eventually, to pave the way for commonhold for new properties.

Although the new law will abolish ground rents on new build leases and during any extended lease term, it does not affect existing leaseholders.

Leaseholders who face high ground rents and want to get rid of them will still need to follow the statutory leasehold enfranchisement process.

I look forward to seeing what the further detail of the governments plans will be on the topic of broader leasehold reform, which we may expect later in this Parliament.

Mark Chick

21.2.2022