Conveyancer Comments On New Freehold Property Restrictive Covenants

A practitioner who heads up a conveyancing team is warning homebuyers to be aware of a ‘fresh scam’ which he believes abuses freehold properties by placing onerous restrictions on new build freehold homes.

The cautionary notice from the conveyancer reveals that ‘rogue’ developers are substituting inflated leasehold charges with equally burdensome restrictions on new freehold properties.

A speech was made in the summer of 2019 by James Brockenshire, former Secretary of Ministry of Housing at MHCLG who announced that all new build housing will need to be sold as a freehold property.

As a result of the Government’s abolition of leasehold ownership for new build homes, all future new build houses must now be sold as ‘freehold’.

However, it seems that homeowners are only finding out after they have purchased their new builds, being sold freehold, that they come with a myriad of restrictive covenants, which limits what the householder can and cannot do with it.

An example of this comes after plucky homeowner, Denise Sullivan bought a new build home from developer Persimmon in Pembroke in 2016 knowing the property was freehold but later found out that her property was riddled with restrictive covenants.

The red alert came from Graham Ireland, head of conveyancing at WHN Solicitors. He said:

“Previously, the main difference between buying a new house leasehold and freehold was that if you owned it leasehold you needed to pay the ground rent, and if you owned the freehold you did not.

“It is more difficult to enforce freehold covenants than leasehold covenants, so another huge part of this scandal is that some developers are now putting the same covenants that were originally in their leasehold contracts into freehold contracts too.

“The upshot is that people are buying freehold and then, further down the line, finding they must get permission from the developer, or management company to extend their property, or for other home improvements. Also, service charges for green spaces and car parking –common on new housing schemes – can be arbitrary and unreasonable, potentially costing homeowners thousands of pounds.”

There are additional issues when people come to sell their properties, because buyers understandably want to see what service or maintenance charges have been paid, and what they’ll have to pay in the future.

Graham explained:

“Some management companies are asking for fees of £300 just to supply a basic information pack that provides contractual details to potential buyers. This effectively gives sellers no choice but to pay this fee themselves if they want to sell their house.”

New home buyers are being advised by Graham to make sure their conveyancing solicitors check all the covenants that come with a freehold house before pressing ahead with any purchase. These covenants can be found in the document which transfers the property to the buyer on completion.

Graham said:

“People can then try to negotiate for some of these covenants to be taken out of the transfer document through their solicitor. The problem here is that the developers may not agree.”

A cross-party group of 30 MPs had tabled a bill to address the issues, but the measure fell by the wayside when Parliament was dissolved for the general election in December.

Previously, a parliamentary briefing paper that was published in August announced plans to reform freehold laws within a year. However, Graham is not optimistic about the prospects for speedy action.

He added:

“It is reasonable to expect that people buying new freehold properties should have the same protection against exorbitant charges as people buying new leasehold properties. The problem is that legislative change is a slow process at the best of times, and reforming freehold contracts is unlikely to be at the top of the agenda when MPs return to parliament after the election.”

4 Comments

  • test

    About time the UK had a Fair Homes Code applying equally to all tenures

  • test

    The matters mentioned above have been commpnplace for decades, especially the requirement for developers to consent to extensions and alterations. You’ll find them in 1960s Conveyances. Nothing new here.

  • test

    “The upshot is that people are buying freehold and then, further down the line, finding they must get permission from the developer, or management company to extend their property, or for other home improvements. Also, service charges for green spaces and car parking –common on new housing schemes – can be arbitrary and unreasonable, potentially costing homeowners thousands of pounds.”

    Surely this is a huge indictment against the conveyancing ‘industry’. Does this mean that clients aren’t told of such restrictions, or if they are told they are not fully explained?

    • test

      John Stacey-Hibbert is right.
      Why on earth did the purchasers’ solicitors not advise about these covenants?
      It sounds like either:
      a. they did, but their advice was ignored; or
      b. they didn’t, maybe because the purchasers used “factory conveyancing” firms for what is effectively execution-only work.

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