Tag Archives: section 42 notice

Selling and passing on the right to extend the lease

Most flat owners are aware of their rights for a lease extension – as long as they have owned the property for 2 years they are entitled to require the landlord grant a 90 year extension and that the ground rent be reduced to NIL or Peppercorn.

What happens if you want to sell the flat? Do you still bother with the additional legal cost of the formal Notice ( known as a section 42 Notice) ? Will this delay the sale? What about the cost of the premium for the lease extension?

You can benefit from a certain action and this can benefit the purchasers as well, forget for a minute about the cost of the extension, your key aim is to sell the flat; let’s just look at what can be done with the formal section 42 Notice!

The answer is that the section 42 Notice should be assigned to your purchaser along with your flat.

THIS WILL:

  • Immediately pass on the rights of the lease extension to your purchaser who would otherwise have to wait 2 years from the Registration of their ownership.
  • They would benefit from a lower extension price rather than suffer from the affect of a shorter lease and inevitably higher flat values.
  • If they cannot agree they would have rights to take the matter to a Tribunal.
  • Most importantly you may well be able to sell the flat whereas you may otherwise find it difficult.

AND you need not pay the premium for the lease extension, nor indeed the costs of preparing and serving the Notice; those can be paid for by the purchaser, after all it is they who will benefit.

At Each Side Leasehold we carry out valuation work for either vendors or purchasers. Often a purchaser who has not exchanged contracts wishes to know the approximate premium for the extension so that they can make an objective decision on the amount to pay for the flat’s leasehold interest. We also act for purchasers who have bought the flat with the Notice, we then negotiate with the landlord’s valuers and if we cannot agree act as Expert Valuers at the Tribunal.

A final word of warning: a section 42 Notice must however be formally and properly assigned by the Solicitors otherwise on the completion of the sale of the flat it will be useless and deemed withdrawn. You may well be liable for abortive costs.

WHY SHOULD I EXTEND MY LEASE?

If you own or are buying a flat with less than 80 years on the lease then you should be taking action to protect what is likely to be your most valuable asset.

Leases are set for a number of years and like sand in an hour glass will eventually run out and revert to the freeholder. It’s a downward spiral – as the lease gets shorter its value decreases and it becomes more expensive to extend. Ideally you should take action while the lease is just over 80 years – it will certainly cost you less than if you wait until it drops below 80 years and you have to pay additional Marriage Value to the landlord (see our blog on Marriage Value).

Fortunately the Leasehold Reform Act came in to force in 1993 to give leaseholders the right to extend their lease. As you as you have owned your flat for a minimum of two years then you have a right to a 90 year lease extension at a peppercorn or nil ground rent. There’s nothing to stop you agreeing the cost of the lease extension by private agreement but you should be cautious if you take this route as when no statutory notice is served the landlord is likely to ask for an inflated premium as well as an increase in the ground rents.

If you decide to extend your lease under the 1993 Act the process is regulated and relatively simple if you take expert advice from an independent valuer and solicitor. You should also be aware that if you want to sell your property you can serve a formal section 42 notice and assign the right to the lease extension to the incoming buyer. This can be key in securing a successful sale as without this a buyer wouldn’t have the same legal rights as your for another two years.

Don’t be put off by the costs involved – look at the lease extension as an investment which will increase the value of your property by thousands and make it more attractive to potential purchasers. If you sit back and do nothing you will struggle to sell a property with a short lease and anything under 75 years will potentially be unmortgageable.