QUESTION
I'm wondering what it would take to ‘force’ my freeholder to surrender the freehold on my London flat. I think I can claim against him dereliction of duty.
September last year my (serial) Freeholder took me to court claiming I owed him £8000 in back insurance. My defence was that he broke the terms of his own lease. It states that he had/has to supply me with a copy of the policy and receipt each year on my requested. But he never did. So 17 years ago I started to buy my own insurance. I won the case and was awarded £6000 in costs but post-court case he’s still not complying.
Can I take him to court? My lease is for 970 years and the ground rent is 15 a year.
ANSWER
I don’t know the characteristics of your building but it might be possible for you to collaborate with the other leaseholders, in your building to collectively enfranchise the freehold or exercise the right to manage. In both cases, there are exemptions so you need to consider, in each case, whether the relevant criteria can be met.
Collective Enfranchisement
The main criteria are:
· the building must be a self-contained block of flats (which includes a converted building as well as a purpose-built one). If it is not self-contained but could be so with a minimum of effort, then it may still qualify;
· the building must have no more than 25% non-residential use;
· two-thirds of the flats must be held by qualifying tenants, i.e., a tenant who owns up to two flats, each under a lease that, when originally sold, was for a term of more than 21 years; and
· the number of participating tenants flats must be at least 50% of the total number of flats within the building.
There is no requirement to have a minimum period of ownership.
Right to Manage
The building must meet certain conditions and a minimum number of leaseholders are required to take part.
· at least two-thirds of the flats must be let to ‘qualifying tenants’*;
· it can be part-commercial but the non-residential part must not exceed 25% of the total floor area, excluding common parts
· RTM does not apply where the immediate landlord of any qualifying tenant is a local housing authority.
· RTM does not apply where the premises fall within the Resident Landlord Exemption. To fulfil this exemption would require the following:
· the premises must be other than a purpose-built block (for example a converted house); AND
· they must comprise not more than four flats; AND
· one of the flats must be occupied by the freeholder or an adult member of their family as their only or principal home for the last twelve months.
*A ‘qualifying tenant’ is a leaseholder whose lease was originally granted for an original term of more than 21 years. There is no requirement for any past or present residence in the flats, nor any limit on the number of flats which can be owned by one person.
The right to manage may only be exercised by a right to manage company and the members of the RTM company must comprise a sufficient number of qualifying tenants. The required minimum number of qualifying tenants must be equal to at least half the total number of flats in the building.
The right relates to a building, so, in an estate of separate blocks, each block would need to qualify separately and an individual RTM notice served. In the case of an estate of flats under the same management, it would be sensible to take over the management of the whole estate, but this would have to be accomplished by application in respect of each separate block.
In Conclusion
If neither of these options is feasible, you can serve notice on the freeholder to remedy any breaches of his leasehold covenants and if that does not prompt him to remedy those breaches, you can apply to the First-tier Tribunal for the appointment of a Manager, at the building.
Finally, none of this advice can be considered until a proper analysis has been completed of the freehold and leasehold titles, at your building. In this regard, you are welcome to send me a copy of your lease to review.
Shmuli (Paul Simon), Founder of The Lease Academy and Senior Consultant Solicitor at Setfords Solicitors.
