Definition of Qualifying Leaseholder

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    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

              Latest Activity

              Collapse

              • Reply to AGM cancelled.
                by Grumio
                One of the directors is cooperating, but we’re not sure if that’s enough. He’s going to register us at companies house regardless of what the other 2 say. His view on the situation is, leaseholders are entitled to be directors, there is nothing in the articles that state directors must be approved...
                26-01-2022, 20:26 PM
              • AGM cancelled.
                by Grumio
                Is this legal?

                A bit of background, we currently have three directors, we are allowed to have up to a maximum of eight directors according to the articles of association. We are all leaseholders. Last summer the three directors decided to hire a managing agent who is now in charge of the...
                26-01-2022, 00:46 AM
              • Reply to AGM cancelled.
                by Grumio
                Thanks for the reply,

                The directors issued the invitations. The AGM wasn’t adjourned or postponed, it was cancelled. Fortunately one of the directors is more than happy to go ahead with the process even if the other two don’t want to get involved....
                26-01-2022, 20:16 PM
              • Service charges according to floorspace vs lease stipulation
                by Santa Fe
                Hello. I own a flat in a block of four. The new owner of the smallest flat is disputing their contribution to service charges based on floor size. All four flats have historically paid 25% each, but of the four leases only mine states that I pay 25%. I have spoken with a solicitor about this and he...
                24-01-2022, 22:55 PM
              • Reply to Service charges according to floorspace vs lease stipulation
                by Section20z
                Macromia,

                Any examples please of tribunal increasing a percentage specified in a lease ? Thank you.
                26-01-2022, 19:22 PM
              • Reply to Service charges according to floorspace vs lease stipulation
                by Macromia
                Agreed, but the issue here is that the lease that the person complaining has doesn't say that they are required to pay 25%, it apparently says that they have to pay "a fair and reasonable proportion".

                With this being the case, they are fully entitled to challenge an equal split...
                26-01-2022, 19:07 PM
              • Reply to Who owns the windows in a flat above a commercial premises
                by Macromia
                Very true.
                This doesn't answer the question of who is responsible, but it could potentially be cheaper (and less hassle) for the OP if they can find a company willing to replace the windows without scaffolding.
                There is, of course, the possibility that the freeholder would refuse to allow...
                26-01-2022, 18:41 PM
              • Reply to Enfranchising from a company I'm already a member of.
                by Macromia
                For something like this, the reasons are of vital importance.
                Anyone can, of course, choose not to reveal details, but anyone making that choice should not complain at all if other forum users respond with answers that the person who isn't being completely open considers not to be relevant....
                26-01-2022, 18:37 PM
              • Reply to AGM cancelled.
                by fos333
                If invitations were sent out then it can't be cancelled, it can be adjourned, postponed, however, if the other director is willing to go ahead with the meeting it will be a valid meeting as long as it's quorate. I don't agree with eagle2 that it will only be seen as an informal meeting, all directors...
                26-01-2022, 18:19 PM
              • Who owns the windows in a flat above a commercial premises
                by andyg1
                I am the landlord of a 2 bedroom 2nd floor flat above a commercial premises ( car showroom ) . The showroom is run by the Freeholder and they own 8 flats of the 12 in the building . A few years ago without my knowledge they erected scaffolding and replaced the old single glazed metal windows in their...
                25-01-2022, 14:52 PM
              Working...
              X