Definition of Qualifying Leaseholder

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    Definition of Qualifying Leaseholder

    My wife has been a joint leaseholder with a friend on a flat we have owned for over 2 years, which has a 71 year term remaining on the lease. The flat has recently been re-mortgaged and we have added, myself and our friend's wife to the title.

    We now wish to extend the Leases. Can the orginal two leaseholders start the process on behalf of us all as they they have held the leases for over two years, or do we now have to wait two years?

    The legislation say "a" leaseholder, and doesn't specifically mention joint tenants or tenants in common. We are the later.

    Thanks in advance
    Richardo

    #2
    Hague on "Leasehold Enfranchisement" (the definative book on the subject) says "Where the lease is held by joint tenants, the joint tenants are regarded as jointly constituting the qualifying tenant of the flat. It is immaterial how the beneficial interests are held, i.e. whether as joint tenants ot tenants in common."

    The legislation does actually specificallly mention the qualifying rights of joint tenants in Section 5(4)(b).

    I would say that one of you having held the lease for over two years is sufficient to qualify. Even if that person was to cease to be one of the leaseholders they would be able to serve notice under the 1993 Act prior to transfering their interest and then assign the benefit of that notice to the remainer, ensuring that they could still benefit from the rights.

    You should always seek the advice of a solicitor about such matters. I am not a solicitor.

    Comment


      #3
      Originally posted by WakeyWakey View Post
      Hague on "Leasehold Enfranchisement" (the definative book on the subject) says "Where the lease is held by joint tenants, the joint tenants are regarded as jointly constituting the qualifying tenant of the flat. It is immaterial how the beneficial interests are held, i.e. whether as joint tenants ot tenants in common."

      The legislation does actually specificallly mention the qualifying rights of joint tenants in Section 5(4)(b).

      I would say that one of you having held the lease for over two years is sufficient to qualify. Even if that person was to cease to be one of the leaseholders they would be able to serve notice under the 1993 Act prior to transfering their interest and then assign the benefit of that notice to the remainer, ensuring that they could still benefit from the rights.

      You should always seek the advice of a solicitor about such matters. I am not a solicitor.
      Not sure that S.5(4)(b) helps. It says that the joint tenants to whom flat let jointly constitute "the qualifying tenant ["qt"]".

      In this case, 2 qts transferred to 4. Right of qt to extend lease under s.39 requires - by s.39(2) - that tenant has been qt for >2 yrs. The 4 qts haven't. It doesn't say "the tenant or at least one of joint tenants", I fear. Even s.101(4) won't help- it just says that refs. to "tenant" etc. mean refs to both/all joint tenants etc, but not "or at least one of them".

      Can anyone construct a counter-argument to help Richardo?
      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
      4. *- Contact info: click on my name (blue-highlight link).

      Comment


        #4
        Jeffrey, I fear you are right and I wrong. When Hague discusses trustees in 4-14, it is suggested that a change from sole to joint ownership may mean the period of absolute ownership cannot count towards the two-year period.

        Comment


          #5
          Thanks for responding so quickly WakeyWakey and Jeffrey.

          Background is flats have been owned for sometime, and in those two names only for tax reasons. Recently we wanted to change this and put in four names and also remortgage. The remortgage completes today, so I guess we have a couple of days to issue Intial Notices prior to our conveyencer completing the title transfer.

          I wonder if as the transfers are to spouses whether we are viewed in law as connected persons and therefore could argue the point?

          Interesting one!

          Thx again

          Comment


            #6
            Originally posted by Richardo View Post
            Thanks for responding so quickly WakeyWakey and Jeffrey.

            Background is flats have been owned for sometime, and in those two names only for tax reasons. Recently we wanted to change this and put in four names and also remortgage. The remortgage completes today, so I guess we have a couple of days to issue Intial Notices prior to our conveyencer completing the title transfer.

            I wonder if as the transfers are to spouses whether we are viewed in law as connected persons and therefore could argue the point?

            Interesting one!

            Thx again
            Excellent news. You should therefore:
            i. serve Notice TODAY, ie whilst 2 names are qts, then;
            ii. complete/register Transfer from 2 to 4;
            iii. AT SAME TIME complete Deed of Assignment of statutory rights, vesting rights in all 4;
            iv. serve not only Notice of Transfer (leasehold estate) but also Notice of that Assignment.

            "Connected persons" point not very relevant unless you can find authority for your view.
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment


              #7
              Thx Jeffrey

              Are you aware of any LVT where this has been an issue? I have a vague memory of reading one case and the LVT came down on the side of the tenant(s).

              In our case we may go for a solution outside of the Act and continue paying a (£200+) GR to keep the cost of the LE reasonable as we are probably sellers in the medium term.

              Comment

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