When to extend your Lease?
- If your lease is approaching 80 years remaining or less; and/or
- You are considering selling the property in the near future; and/or
- You want to maximise the value of the Property
The best time to extend your lease is before the remaining years reach 80 years or less. Once the remaining lease term is below 80 years, the Landlord is entitled to claim 'marriage value' which will increase the premium you will pay. The more years left on your lease, the lower the premium will be.
- To increase value.
- To reduce ground rent to nothing (“a peppercorn rent”).
- To remedy any lease defects.
- To avoid paying a higher premium in the future when the remaining term is less and/or when property values are higher (both of which will result in paying higher premium).
Do I qualify?
As long as you:-
- Own a long lease (over 21 years); and
- You have owned the Property for at least 2 years
You are entitled to a statutory lease extension.
First you need to identify the competent landlord. This is usually, but not always, the Freeholder. If there is an intermediate landlord, whether they are the competent landlord will depend on whether they have a sufficient leasehold interest to grant the lease extension. You may want to discuss this point with your solicitor.
Some Landlords are prepared to agree to grant a lease extension without the need to serve a formal notice and navigate the statutory procedure, so it may be worth approaching your Landlord to see if they will negotiate. However, some Landlords will use the fact that the negotiation is outside the legislation to their advantage by offering a new 99 or 125 year term (instead of 90 years on top of your existing lease term) or requesting a higher premium, higher ground rent or more onerous lease provisions. Utilising the statutory procedure is the only way that you can guarantee you will obtain a 90 year extension to your current lease term with a peppercorn ground rent at a fair premium.
The statutory route involves serving a formal notice on the Landlord requesting a 90 year lease extension for a reasonable premium. The offer notice must confirm the premium you are offering to pay. This should be based on expert valuation advice as it forms the basis of negotiations with the Landlord and may have to be defended at the Tribunal if the premium cannot be agreed.
In view of this, the first step is for you to instruct a Surveyor. The Surveyor will provide valuation advice on the premium to be offered to the Landlord in the Notice and, also, advise you on what you can expect to pay once terms have been agreed.
Your solicitor will then be able to prepare the Notice requesting a Lease Extension on your behalf after checking the titles to the Property and your Lease document. The Notice will be served on the Landlord to commence the statutory procedure.
Once the Notice has been served on the Landlord, there is a period of two months for the Landlord to respond. The Landlord will respond by way of a Counter-Notice which will confirm (a) whether the Landlord agrees you are entitled to a lease extension and (b) whether the Landlord accepts the premium offered in the Notice. In most cases, the Landlord will accept the right to a lease extension but reject the premium offered. In the unlikely event that the Landlord accepts the right and the premium, you will be entitled to a lease extension at the agreed premium.
If the Landlord accepts your right to a Lease Extension but rejects the premium, there will be a period of negotiation (two to six months) to agree the Premium to be paid. Your Surveyor will conduct the negotiation on your behalf with the Landlord's Surveyor. Once the Premium has been agreed, your solicitor will agree the Lease Extension document with the Landlord's solicitor and complete and register the Lease Extension for you.
It is possible, although unlikely, that the Landlord will reject the Notice. If so, the matter may have to be referred to the First-Tier Property Tribunal for determination. This may also be the case if the Surveyors are unable to agree a Premium acceptable to both you and the Landlord during the negotiation period. If the matter has to be referred to the Tribunal, additional fees will be incurred on both sides and these will depend on the issues to be decided and the time required preparing for and attending the hearing.
With some Landlords it is likely that the 6 month deadline will be reached before any meaningful negotiation has taken place and it is therefore possible that your solicitor will need to submit the application to the Tribunal to protect your position.
In addition to paying your own legal and surveyor’s fees, you will also be responsible for the Landlord's reasonable legal and surveyor's fees once the Notice has been served. If the matter is referred to the Tribunal, the Landlord becomes responsible for paying his own fees from that point. This is to put pressure on the Landlord to agree a reasonable premium during the negotiation period.
Also, once the Notice has been served, the Landlord is entitled to request payment of a 10% deposit (being 10% of the amount offered for the lease extension). The deposit must be paid within 14 days of the demand or the Notice becomes void.
How to pay?
Obtaining a lease extension can be expensive. The premium you will pay depends on the length of lease remaining, the value of your property and the ground rent payable. Some mortgage providers are prepared to lend further amounts if you are extending your lease so it may be worth contacting your lender to see if they can assist. Otherwise it is important to have sufficient funds available as once the procedure is started, a strict timetable will apply. Once the terms are agreed you will have a maximum of four months to complete the lease extension. If you fail to do so, the a landlord can refuse to complete and you may have to start the procedure again, although you will still have to pay the Landlord's legal and surveyors fees incurred in addition to your own.
How to start?
- Get a copy of your lease
- Instruct a surveyor to value the lease extension
- Think about financing for the lease extension
- Instruct a solicitor to check your Lease
- Contact Landlord to see if prepared to extend without notice
- Instruct your solicitor to prepare and serve the formal Notice
Kay Piper, Partner at Lyndales Solicitors