Time to Rescue Flat Owners from Feudal Servitude!

A personal pledge from Cllr Paul Kohler

Flat owners in England & Wales invariably own their home under the leasehold system. This involves them being granted a long lease by the freeholder (commonly for 99 years) who is the ultimate owner of the land (with rights that can exist potentially forever - even if they won’t!). In legal terms the long leaseholder is little different to a short term tenant - both of them own a lease, which is a wasting asset under which they owe obligations to a landlord.

The leasehold system dates from feudal times and was only adopted in the context of flat ownership because of a technical shortcoming in English law. Where a building is divided into flats the various owners obviously need to share certain commitments to one another (such as maintaining the fabric of their flat, the common parts etc). However it is not always possible to enforce such duties if the flat owners each own separate freeholds.

This is because, under English Law, a freeholder cannot easily enforce positive obligations against a freeholder of another piece of land. In contrast the essence of a lease is a relationship, in which the landlord and tenant each owe enforceable duties to one another concerning the same piece of land. English law consequently uses the highly inappropriate landlord/tenant relationship simply to ensure positive obligations concerning the building can be enforced between flat owners, indirectly, via the landlord. This results in the freehold owner of the land, as landlord, necessarily acquiring a dominant position over the flat owners, who, as tenants with a wasting asset, are in a more vulnerable position.

Although a system of freehold ownership of flats, which overcomes these technical difficulties, exists (known as Commonhold), vested interests have prevented its uptake. Sadly the Conservative government recently bowed to their pressure, once more, by again refusing to adopt the Law Commission’s proposals to overcome these obstacles.

I first met my wife Samantha when we both worked at the Law Commission and have a very high regard for its work. I pledge, if elected as your MP, to do all I can to adopt its recommendations to ensure Commonhold becomes the default system of flat ownership in this country.

July 2023