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How to extend your lease if you own a share of the freehold?

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Do you need to extend your lease if you own a share of the freehold? How much does it cost to extend my lease? Do all the freehold owners need to consent?
We often get asked these questions when advising tenants about extending their leases.

If you are lucky enough to own a flat and a share of the freehold the good news is that the process of extending is relatively straightforward and the costs are fixed (and low).

The first step is to agree this with the co-owners. You cannot usually act alone however extending the lease will benefit everyone.

If your co-owners need convincing there are an number of very good reasons to extend your lease now and not wait to when they are selling or remortgaging when the pressure may well be on to resolve these issues.

Short Lease

The main reason people act is that they find that their lease is ‘short’.

Defining a ‘short’ lease is not an exact science – typically it means less than 80 years – but is driven by mortgage lenders instructions.

Many lenders ask their valuers to comment if the lease length has dropped below 80 years and they will not lend at all if the lease is too short – some buy-to-let lenders will not lend if the lease is below 75 years. This is because they will not take into account the share of the freehold when providing finance – either to you on a remortgage or,  if you are selling, to your buyer on their mortgage – because they cannot easily take a mortgage on your share in the freehold. This can make the re-mortgage or selling process more complicated or longer than necessary because you need to extend the lease first.

Whilst we often find ourselves helping freeholders to quickly resolve these problems where one or more tenants in the block are selling (even if they have a separate lawyer for the sale) it does place undue pressure on the seller in particular as they suddenly become reliant on the goodwill of their neighbours to deal with matters without delay – it only takes one owner to take a holiday at the wrong time and the whole sale could collapse.

It is worth pointing out that it is no cheaper to wait until the sale is progressing before extending your lease because as indicated above we often act for owners who are selling using another lawyer for the sale process. This is because our fees are fixed and competitive and are often lower than the bolt on costs of selling lawyer who assumes they have a captive audience.

Absent Freeholder

Even if your lease is not short it is still sensible to move as much value from the freehold into the leasehold interest in the flat especially if you hold the freehold in your personal names. This is because you cannot control your co-freeholders and if one was to become ‘absent’ it would be impossible for you to extend the lease without going through the complicated statutory procedure including Court proceedings and payment of a premium for the extension. This would defeat the object of owning a share in the freehold.

You may think it is an unlikely that one of the owners of the freehold would become absent but we have seen plenty of examples where it has happened and consequently the marketability or value of the other flats have been adversely affected.

The most common example is where the co-owners each own a share in the freehold personally however they fail or chose not to pass on their share on sale of the lease. They then move away and lose touch with the other owners. Sometimes this is forced upon owners if they are repossessed – the mortgage company has no right to transfer the share of the freehold so it is left with the old owner with the share of freehold. Again we have advised clients in situations where the repossessed former owner has demanded significant sums to hand over his share of the freehold many years down the line.

Limited Company

It is sensible to hold the freehold interest in a limited company using special provisions in the memorandum and articles of association linking the ownership of the freehold automatically to the ownership of the flats. This would enable the Directors of the company to transfer a share even if it was not dealt with by the outgoing tenant and so to avoid the situation on resale or repossession mentioned above. If this is not set up in your company articles it may be worth amending them because you can have the same problem as with an absent freeholder and a repossessed former owner described above.

The downside to this is that there are basic requirements to file formal returns and accounts, even if they are dormant, at least once a year. This can be done easily on-line but the penalties for non compliance are relatively high and this can result in the company being struck off the Company Register and dissolved.

The costs of restoring a company to the register is expensive and can take time.

This means that even if the freehold is held by a limited company it is still sensible to move the value from the freehold to the leasehold by granting a long lease to each of the tenants.

Modernise and Fix

In addition you can also take the opportunity to modernise or fix any minor defects in the leases to make the resale easier in the future to ensure that it complies with current requirements in particular those set down by the Council of Mortgage Lenders and Building Societies Association.

Often we find that leases need amending or tenants want to change leases in the following areas:

  • ground rent – remove the need to pay ground rent by reducing it to a “peppercorn”.
  • restrictions on sub-letting – removing historical restrictions or barriers to underletting the whole of your property on an assured shorthold tenancy (AST). Although these covenants may not be enforced in practice if you want a “buy to let” mortgage your lender may pick up on the restriction and refuse to lend until the provision is changed.
  • changes to covenants on floor covering – a requirements for carpets in all areas to permit wooden flooring (with rugs or other suitable sound deadening) – although this can be controversial for some blocks.
  • insertion of a landlord’s “enforcement covenant” – again this is a fix which makes little day to day difference but will assist on sale and refinance.

How is the lease extended?

Generally there are two options available in relation to the format of the new lease, which vary the costs payable:

  1. New Lease – this involves a complete rewrite of the terms of all the leases in the building. The cost of drafting a new lease would be higher but for most blocks this is not required.  This would only normally be required if :
    1. the current leases are substantially defective in many respects; or
    2. the format of the lease differs throughout the building (they should be uniform in all key aspects)
  2. A deed of surrender and re-grant – this is a ‘short form’ of new lease which refers back to the majority of the terms of the existing lease and only amends the length of the term (normally to 999 years) and reduces the rent (again normally to a peppercorn). You can, if required, incorporate some minor amendment to the leases for example the addition a landlord’s enforcement covenant (a common defect). Most leases are extended in this way.

How can I tell what option we would need to use?

We will advise you on this when we look at the lease but if any of the flats in the building have been bought or sold recently, especially with a mortgage, then a deed of surrender and regrant is normally sufficient. This is because the solicitor who acted on the purchase would not have recommended the purchase of the flat with such defects or variations unless the lease was varied or indemnity insurance was put in place to cover the problem.

Of the many blocks of flats we have dealt with we have only recommended a new lease, as opposed to the surrender and regrant method, in one or two occasions.

How much does it cost?

Typically the fees are fixed at £450 per flat plus VAT for a deed and surrender and regrant.

If there are a high number of flats in the building some economies of scale may apply for example on blocks with 10 or more flats we would charge £400 plus VAT if the leases were in a similar format. With very large blocks we often are able to put together information packs which can assist in discussions usually during an AGM. We also fix our costs for a period of years as it is unlikely in these cases that all flats are going to be extended at the same time.

Our costs will cover:

  • a review the titles and leases in the block;
  • recommendation of any changes required to the lease;
  • drafting the new lease;
  • obtaining consent from your mortgage lender (this is needed to transfer the mortgage from the old leasehold title to the new title);
  • arranging for signature by all parties;
  • dealing with formal completion, stamp duty and registration requirements; and
  • storage of the deeds post registration.

In addition to the legal costs there will be a charge for any disbursements incurred (per property). This typically amounts to :

  1. £6 for obtaining office copies of the leasehold title plus shared cost of obtaining freehold title;
  2. £3 for obtaining office copies of the lease (only required if  you cannot supply a copy of your flat lease and any variations to it); and
  3. £40 for registering the new lease at Land Registry.

In addition if you have a residential or buy to let lender they may charge an administration fee for consenting to this transaction (which can vary – some do not charge others charge up to £85). Commercial mortgages (linked to a portfolio) may have wider requirements including searches.

It is worth pointing out that our fees cover the cost of acting for both the landlord and each of the tenants. There is never usually a requirement to have separate representation for both parties – saving further costs.

Where we can help

We are specialists in dealing with these type of matters. If you require information about a particular aspect or just want to talk through the options call or email Mark Sadler on 01708 757575  email mbs@ker.co.uk

As a next step if you think you might want to use us we can circulate confirmation of our fees to you and any other owners in the block (usually by email) with a short one page questionnaire (typically in the format of the attached) – once this is completed and returned we can start the process immediately.

 

 

Lease Extensions – Share of Freehold – Short Lease – New Lease – Cost of Extending a lease with a share of freehold – Share of Freehold Extending Lease – 50% share in the freehold – Freehold Management Company Extending lease

 

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33 comments on “How to extend your lease if you own a share of the freehold?

Reply

i need advice as need to increase lease as it has dropped down to 60 years, also the downstairs flat owns the freehold apurchased owning the full freehold

nd are now selling, but they have taken the freehold from the property and it is now held by a ltd or private company, the problem is when the last people sold downstairs they offered me share of the freehold which i accepted, but these new buyers refused to complete unless they kept the full freehold, so we are now 2 years later and prices have increased, they want full market value, when i had agreed a deal with the last people, which these new people messed up by refusing to complete, surely i must have some kind of case as i had agreed to buy share of freehold and they stopped it from going ahead and now they are asking much much more…

Mark Sadler Post author
Reply

You have unfortunately lost out. The freehold can be very valuable and I can understand why the other owners want to hang on to it. You will have to go through the formal statutory lease extension procedure to extend your lease now – there is no “cheap” option I am afraid. As you say the prices are increasing and the lease is only getting shorter so a notice needs to be served as soon as possible.

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A very enlightening article, thank you. We have a slight variation on this situation. We have a leasehold on our flat, and a share of the freehold of the building (there are 2 other flats). Our lease still has c.950 years left, but the basement flat has just 59. They are looking to renew the lease. Would these standard charges apply in this instance? Is there a way of fairly capitalising on this situation?

    Mark Sadler Post author
    Reply

    It depends on a number of factors – for example did the owner of the basement flat pay more in to purchase the freehold when that was acquired to balance out the shorter lease length or was your lease extended for no premium in the past? You would need to look back at the purchase of the freehold carefully. There should have been a “participation agreement” between the flat owners setting out their respective commitments.

    In any case I would be cautious – obviously you can try and demand money but will the fallout/potential dispute with the basement flat owner be worth it in the long run?

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We have our flat on the market. 3 flats in the block. I am aware that one flat extended to 999 years not long ago when it was sold and a ltd company was set up. I’m unsure who the directors are. Our lease currently is 74 years. We need to extend but I just don’t know where to go or what to do I wasn’t involved in any of the set up it was all sorted by the lady that used to live upstairs. The freehold is split 3 ways.

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I am interested in buying a flat as a btl. It has a share of the freehold, but just 80 yrs on the lease. Is it possible to get the lease extended even if other flats are not participating? There’s probably about 10 in a large Victorian house, with a new bit built on the back. Why didn’t they do a 999 yr lease in the first place? I see from your bro, the only advantage of a lease, and not Co. is that accounts need not be fined etc. Is that right?

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Hello, I own a share of the freehold on a block of 3 flats along with 2 other landlords. It is split 40%, 30%, 30% as 2 of the flats are smaller. We have recently started remortgaging our flat and have found out we only have 83 years left of the lease. The lender the broker chose for our remortgage will not accept leases under 85 years. Would you advise extending the lease, and if so how should I sell this idea into my fellow landlords? Could you give me an approximate cost for doing this? Thanks

    Mark Sadler Post author
    Reply

    The other owners should be approached. There should be no reason why they should not agree. Our fees are as per the article above – £450 plus VAT and disbursements per flat.

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I wonder if you could offer some advice regarding my attempt to extend my lease which has just over 70 years to run. There are six flats in my block and we have obtained share of freehold and a limited company is in place. I am a shareholder. I do not live at the property and it is rented out. I recently asked one of the Directors what the procedure for the extension as she informed me that one of the flat owners had recently extended theirs. I was told contact your solicitor have them draw up the appropriate contract and it would be signed. Recently two other owners have done this and their leases have now been extended. I’m assuming they submitted a Deed of surrender.
My solicitor contacted the solicitor who deals with the limited company and this is where the issue started.
Both are asking for fees to be paid even if they are unable to administer the extension.
I believe the solicitor associated to the company was not very happy about the fact that she was not informed and has made her feelings clear by email to the Director. What would you suggest is the best way to resolve this matter?

    Mark Sadler Post author
    Reply

    Quite often you are asked by the solicitors acting for the Landlord to pay their fees up front – quite of often by way of undertaking through the solicitors whether or not the matter proceeds to complete. However you should be in control of this so there should be no reason why the matter would not complete. If you are in any doubt your lawyers can add a line into the undertaking to say that the fees will not be paid if their client (the landlord) unilaterally withdraws from the transaction.

    Generally however we do not work in that way where there is a share of freehold – we act for both parties – Landlord and Tenant – and we do not require the fees up front. However as the procedure is agreed in your block and firmly in place I would recommend that you go along with what is set down rather than trying to reinvent the wheel here.

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My lease is 72 years I’m currently renting and intend to buy the property. I’m in a block of 8 flats and each owner has a share of he freehold. The current owners of my flat have only owned it for 6 months. Does this mean they can’t apply for a lease extension? We have peppercorn ground rent but all have relatively short leases as far as I know, it concerns me for re-mortgaging purposes in a few years time.

    Mark Sadler Post author
    Reply

    There are two systems for extending the lease. Firstly the statutory route where you need to own the flat for 2 years and you get a 90 year extension and reduction of the rent to a peppercorn and secondly the agreed basis i.e. by simple negotiation.

    Usually the agreed basis is used where there is a share of freehold (because most owners purchased the freehold with the very intention to extend their leases). Often there is no charge made (apart from legal costs) for this extension but this cannot be guaranteed.

    Some lenders will already not lend on 72 year leases (many buy to let lenders are now looking at 75 years) so the issue of lease length is very relevant. You should check to see if there is a procedure in place to extend the leases or if any discussions have been had to move this forward and if so what are the proposed terms. Getting a block of flats to move forward on this type of issue can be very time consuming. The larger the block generally the longer it will take. If however the block is relatively small – save 8 or less flats you may wish to consider making your offer conditional on the lease being extended first.

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Hi. This is a helpful thread, but I have another question. I own a share of freehold split between 2 flats. The co-freeholder has no interest whatsoever in extending the lease, which is at 70 years. I think because he owns his flat and knows I need to extend mine to remortgage.. and thinks he maybe able to cash in. Can I serve a Sec 42 on the landlord (ie. myself & the co-freeholder) and when the landlord is unable to agree the terms of a counter-notice in time, take it to a court and seek a vesting order? Is there a less tortuous route?

    Mark Sadler Post author
    Reply

    There may be a background trust arrangement between the freeholders (written or implied) – do you have any documents from when the freehold was first purchased? This may include the participation agreement which should ideally include a desire for the leases to be extended once the freehold has been purchased. There may be other evidence. This could help you but again if there is no co-operation then there is still an expensive trip to the Court.

    Otherwise the section 42 notice is the only way to force the matter through. Once you have done this then just hang on to the freehold if you ever sell the flat and wait out your co-freeholder – when he wants to sell or extend the lease you should get your money back plus possibly some profit (as the lease should be lower and the value of the flat higher). If you point this out then he / she may well see sense.

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Hello,

I am looking for some advice on a potential flat I am buying in London. The flat is leasehold, with 94 years left on the lease. The freeholder is the commercial property on the ground floor, the head lease holder is the first floor flat above, and this flat I am looking sold with a sub lease for the 2nd and 3rd floor. There has recently been a loft conversion and full refurbishment of this flat, therefore the mortgage lenders are treating it as a ‘new build’ even though it is a old shell i.e. the original building outside. Is there a reason that the current sellers who did the refurb did not a get lease of over 125 years if this property is now being classed a new build. I am worried about purchasing the property and then for some reason not being able to extend the lease in the future, even at I am aware significant cost. Thanks

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Hi, I am in the process of buying a flat. Originally a house converted to 2 flats. I will own the freehold title of the building. The flat has a 86 years lease (not the 99 yrs we were told by the Estate Agent) picked this up when reading the contract. I would like to know, firstly if I transfered the freehold title to both my wife’s and my name could I grant myself a new lease? Would I have to pay myself a premium? Sounds stupid but an honest question. I have a residential mortgage in my name only. Also could I do this immediately rather than waiting 2 years.
Any advice is greatly received.
Fran

    Mark Sadler Post author
    Reply

    You can grant yourself a new lease (but not directly to yourself if the same name is on the leasehold and freehold title – use a nominee to grant the lease with you e.g. spouse or partner).

    You do not need to wait 2 years or charge a premium.

Reply

Hi Mark, we are 50% freeholder with one other owner (2 flats) and require a variation on existing lease and also a lease extension. The variation is the incorporation of what was formerly the common entrance hall into our lease as the other freeholder has extended and created a separate entrance to that property. We have been told that a full scale plan is required? Please can you advise? We are mortgage free but the other owner has a mortgage.

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Dear Mark,
the house is divided into 2 flats, and myself and the owner of the other flat are both freeholders and leaseholders. However whilst he has a 999 leasehold, mine has only another 81 years ( was originally 99). I wish to extend the lease to 999 years. Do I have to pay the other freeholder to extend the lease and is the procedure more complicated in comparison to extending the lease when all flats have same lease length? And therefore is the fee to extend more expensive? I am meeting the other freeholder in a few days to open preliminary discussion.
Thanks for your advice.

    Mark Sadler Post author
    Reply

    There can be a risk here that the owner with the longer lease chances his or her arm and asks for payment or some other benefit (such as transfer of a part of the communal space such as the loft) in return for consent. They may just refuse to cooperate entirely.

    This may be motivated by all sorts of reasons for example they want to buy your flat cheaply or they have fallen out over some other matter such as communal repairs or consent for alterations. This is why you should, especially in small blocks, extend together and not be the last flat with a short lease.

    A recent Land Registry dispute highlighted this problem where a new owner to a block of four, who were all extending their Leases together, found their lease extension was blocked by the other three as soon as they completed their purchase on the assumption they could demand a payment from the new owner.

    Thankfully most owners get on and cooperate on the basis that they or the predecessor received a free lease extension in the past or even if they had a longer lease when the freehold was purchased they paid less towards the cost at that stage.

    Obviously you need to press on with discussions with your neighbour as your lease is only getting shorter.

Reply

Hi,

I wandered if you could help, I purchasing a flat which is in a house coversion including 2 other flats. It is share of the freehold, and I have just found out the lease is 85 years. Would all 3 flats have to agree to extend the lease? Or can I extend the lease on my own flat only?

Thanks

    Mark Sadler Post author
    Reply

    You need agreement from all owners but with that you can extend just your lease but you cannot do it alone without these consents.

Yve
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I am the freedholder with the other flat above me his lease requires a variation with amended plans attached to it to show the room in the loft and at the same time He would like to extend my lease to 999 years for there is only 63yrs on our leases.It seems to make sense to do the variation and extension at the same time. These require both of our signatures as freeholders .my questions is would imonly pay for the extension of the lease if we just use one solictor ? Please advise and what would be the cost to do this and how long does it take?
I believe
There is no requirement for me to do this but in the long run it seems to be the sensible thing to do.

Thanking you

Reply

I own a flat with 75 years on the lease, and a share of the freehold. Do I need permission from the other freeholders to grant myself a lease extension? Thank you.

Reply

Hi Mark. I bought a flat (one of four in the block) where the other three residents own the freehold in a limited company. The lease is around 100 years to run and I’m not aware if the other residents/freeholders have extended their leases.
Should I buy my share of the freehold first and then ask to extend the lease, basically is their a preferred order of doing these (note the cost to buy the freehold is around £1k and the flat is worth around £130k).
Thanks
B

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Hello, i am a joint freeholder of a 2 flat terrace and am looking to extend the length of the freehold / lease. Can I do this on my own, if the joint-freeholder consents ? He is somewhat unwilling to go through the process himself, but willing for me to do so, to get it done. Does the joint freeholder need to go through the same process as I will, so we act ‘in concert’, or can i do it alone? Thank you for advice, David

    Mark Sadler Post author
    Reply

    He can consent to you extending your lease on his own if he wishes but it is better especially when he is going to end up with a new co-freeholder when you sell (who may be difficult to get on with and refuse to help time extend his lease) to do this together in a building with two flats to avoid this risk.

Reply

I’m about to buy a buy to sell property (flat) with just 55 years on the lease. Should i aim to buy the freehold and extend the lease or just pay to extend the lease. I am looking to refurbish and sell on quickly. This is a house divided into two flats.

    Mark Sadler Post author
    Reply

    This may be a problem.

    As the purchase of the freehold (collective enfranchisement) involves the neighbouring owner then it may be difficult to organise them – they may not co-operate or have the funds to purchase the freehold. However you can be involved in this process from day one of your purchase.

    If you purchase the flat you do not have a right to a new lease through the statutory procedure for 2 years (from the registration of the lease in your name) so they landlord may not deal with you or demand excessive amounts for the lease extension.

    Have you considered negotiating directly with the landlord at the same time as the purchase of the flat – you could then perhaps co-ordinate the purchase of the flat with the new lease. Otherwise you would need to get the seller to serve a statutory notice (on the basis that they qualify for a lease extension under the 2 year rule) and take an assignment of that notice so you can complete the statutory lease extension in your name.

Reply

Hi,

I offered on a flat and just before exchanging, my solicitor discovers the basement is not included in the demise.

The council are the freeholders and are unable to confirm if they own the basement.

I’d like a quick resolution and wondered what the options are? The sellers are willing to sell without the basement at a reduced price, but we have no idea how to estimate the cost.

What would you advise regarding estimating cost of purchasing the lease for a basement?

Thanks

    Mark Sadler Post author
    Reply

    This is a valuation issue unless of course there is a mistake in the lease (was this originally a right to buy lease?). It is difficult to give specific advice on this without seeing all the documentation.

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