The Ground Rent “scandal” has forced builder Taylor Wimpey into assisting some people stuck with ten year doubling grounds rents. The “Ground Rent Review Assistance Scheme” has been set up to assist those who purchased from Taylor Wimpey to vary the terms of the lease to effectively turn the 10 year doubling ground rent review clauses into a 10 year RPI (Retail Price Index) rent reviews. This type of provision is far more acceptable to buyers and lenders and therefore sensible to take up. As this is a voluntary scheme you may need to move quickly.

We offer a “free” legal service to fix your lease if you are affected.

What is the problem with 10 year doubling reviews?

Clearly it does not take a mathematician to work out the effect of a ground rent that doubles every 10 years.

Within 50 years a ground rent of £250 per annum (or year) becomes £8,000 per annum {£500 (1st review) £1000 (2nd review) £2000 (3rd review) £4000 (4th review) £8000 (5th review)}.

In comparison historically ground rents were often small sums increasing, if at all, every 25 or 33 years, for example £75 for the first 33 years and £150 for the next 33 years and £300 for the next 33 years.

These Taylor Wimpey leases also tended to back dated the start dates of the term to before the date of the lease so that the reviews started at year 8 for example.

This created a very nice income to be bundled up and sold on to ground rent investors.

However the second compounding issue was that the developer did not take into account the value of the property being sold, so these same rent figures (e.g. £250 per annum) applied to lower value housing outside London and the South East (where a ground rent is a much higher proportion when compared to the value/sale price) .

Therefore the saleability or mortgageability of your property may be affected to different degrees dependent upon the value of your property.

A flat worth £600,000 in London will be less affected than the £120,000 house in Liverpool but both would probably benefit from the change being offered to the lease.

Lenders have also changed their criteria for lending on such leases now and generally any newbuild flat should not have a ground rent which is more than 1% of the value of the house or flat and there should not be a 10 year doubling rent. RPI is seen as an acceptable alternative. Ground rent doubling over longer periods, say every 25 years are also seen as acceptable at present.

As a result many buyers are refusing to buy such leases and this is part fueled by recent advice from solicitors and valuers.

August 2019 Update – Lenders Toughen their position

The Nationwide Building Society and many other lenders updated their mortgage instructions in mid 2019 to deal specifically with ground rent reviews on “second hand” properties. They advised that where ground rent doubles more than every 20 years (e.g. doubles every 5, 10 or 15 years) solicitors are to advise the Issuing Office for the mortgage offer and the Offer in their words “will be declined”.

There is more pressure therefore to amend the lease to a more acceptable form of ground rent review. At present the same lender, the Nationwide states that the following type of rent review is “Acceptable (no requirement to advise Issuing Office)” ground rent review periods of 10 years or more with a ground rent escalation based on RPI.

What are the details and limitations of the scheme?

Crucially this only helps “qualifying customers” of Taylor Wimpey. If you purchased a home directly from Taylor Wimpey (not via a sub-sale or second hand from the original owner) and you still own that home then you should be entitled to the option of the varied ground rent clause.

The scheme is currently being offered by Taylor Wimpey on a voluntary basis to qualifying customers. This means that this offer may be withdrawn at any time.

Often Taylor Wimpey has already sold on the freehold of your flat / house  however they have reached agreement with a number of freeholders to vary the leases none the less. We suspect that there has been some agreement and payments between the two parties but clearly neither we nor you will be privy to that deal (as you were not really privy to the sale of the original freehold of your house or flat in the first place).

I did not buy directly from Taylor Wimpey – can I use the scheme?

It depends – the scheme is limited to those who have purchased directly unless as we understand it Taylor Wimpey still owns the freehold. This means in most cases you will not qualify. However we would still recommend applying because we have seen situations (whether by accident or design) where a second owner has been able to vary the lease even where Taylor Wimpey has seemingly sold their interest. If not you may be able to use one of the landlord based schemes such as those offered by E&M.

Does it apply to houses and flats/apartments?

Yes, provided you qualify then all customers who purchased from Taylor Wimpey and who still own homes (houses or apartments) which have a lease with a ten year doubling ground rent clause will be entitled to the variation.

I am an investor with multiple ex-Taylor Wimpey buy to lets can I claim?

Yes, each flat or house is entitled to a variation. You will however need to make a separate application (link below) for each unit.

Have you any experience in dealing with these matters?

We have already successfully helped a great number of leasehold owners at a number of ex Taylor Wimpey blocks including Corn House, Adstock Court, Brunel House, Canterbury House, Christmas Street, Church Street, Devonshire House, Eaton Court, Exeter House Academy Way, Hampden Crescent, Image Court, Invito House, Keele House, Academy Way, Lancaster House, Lilac Gardens, Loughborough House, Lux Building, Maxwell Road, Mere Drive, Oxford House, Pendleton Court, Penhurst House, Powell Gardens, j Pulse Court, Tenzing Gardens, Waltham House and Wave Court.

Does it apply to all customers?

We understand that Taylor Wimpey were still in discussion with some freeholders. Given the pressure from the press and Government it is likely they will try and resolve matters for all customers.

Are Retail Price Index(RPI) reviews just as bad?

We are not valuers but the view taken by most in the industry (including lenders, lawyers and surveyors) is that a RPI 10 yearly review is better than a 10 yearly doubling of rent. The RPI figures are published regularly by the government. If you look at the past 25 years or so RPI effectively results in a doubling of the rent every 25 years as opposed to every 10  but as they say we past performance  cannot guarantee future performance. However as this is a government index used for many other purposes it is likely it will remain relatively stable.

How does a Retail Price Index (RPI) review clause work?

The rent review periods are the same – once every 10 years. However the rent review is based on changes on an “Index”. The actual index  used is the “All Items” index figure of the Index of Retail Prices. This can be found on the website of the Office of National Statistics ( https://www.ons.gov.uk ).  For ease you can download the Excel file below series-290118 which is a .csv file with the statistics since January 1987 when the index started.

To give you an indication of how the review will affect a rent tale the following example (usual actual RPI figures):

• Assume the lease term commenced in December 2007 at a rent of £250 per annum
• For the 10 yearly review in 2017 we need to obtain the Base Figure for RPI which would be 208.90 (in October 2007 as most clauses take the figure 2 months before the review date).
• The Index Figure in October 2017 (2 months before the first review date) was 275.30.
• The new rent is calculated using this sum £250 x 275.30 ÷ 208.90 = £329.49. An increase on the first review of £79.49 as opposed to £250.

Over 30 years (using historical figures from 1987-2017) a rent of £250 would increase to (£250 x 275.30 ÷ 103.20 =) £666.90 whereas under the doubling review is would be £1,000 (although depending on when your lease term started the rent may be £1,000 by year 28 or 29.

These rent reviews are however upwards only – that is to say they will not reduce the rent if the index falls (this is unlikely anyway).

The rent reviews also last throughout the whole term of the lease whilst the doubling rent review was limited to the first 50 years only.

As solicitors what do you do?

We provide a the legal service required to vary the lease. We only act for you (and your mortgage lender). We will do this effectively for free within the fee scale offered by Taylor Wimpey to cover all legal costs and disbursements.

As Taylor Wimpey only make a “fixed payment” towards your legal costs many non-specialist solicitors will charge you over and above this fee. We will not charge additional costs on top.

Obviously we need to make sure that the details of the variation are correct and there are no other provisions which would adversely affect your lease.

If you require further information call Mark Sadler on 01708 757575 or email mbs@ker.co.uk

Sounds great, can I instruct you?

Yes. For speed we have attached our client care letter and our initial questionnaire for you to complete and return to us with a copy of your identification.

You will also need to make your application to Taylor Wimpey on line – once they send you a letter confirming that they will vary your lease then you can send us a copy or the reference code and advise Taylor Wimpey that we are acting for you.

Taylor Wimpey will require the following information to be put on their form:

Solicitor’s Company Name: Kenneth Elliott + Rowe
Solicitor’s name: Mark Sadler
Solicitor’s Postal Address: Enterprise House 18 Eastern Road Romford Essex
Solicitor’s Post Code: RM1 3PJ
Solicitor’s DX address: DX 131528 Romford 8
Solicitor’s email address: mbs@ker.co.uk
Solicitor’s Contact telephone number: 01708 707860
General Contact Number: 01708 757575
Solicitor’s reference: MBS/Your Surname

What happens next?

As soon as we receive your form it is always good to get the consent of your mortgage lender as this can slow the process if left to the end.

We will then receive an undertaking from Taylor Wimpey’s lawyers to cover the costs (this can take a few weeks) and usually a week or more later we are contacted by the current freeholders or their solicitors with the draft documents. This contains copies of the title and the deed of variation. We can then approve the documents and arrange for you to sign in readiness for completion. Completion will only occur if all the documents are back signed by all parties (you and the freeholder and any management company who is a party to the lease).

Please note this process can take several months to complete (from experience).

How do I apply to Taylor Wimpey?

If you think you qualify then you need to go to the Taylor Wimpey website and complete some details. You can use this link – click here to begin the application.

As this is a voluntary process there is no obligation on you to make an application, or to complete an application once it has been started.

Are all Taylor Wimply leases so onerous?

No, there are different types of lease. You need to look for a specific clause in your lease referring to the rent doubling every 10 years of the term. These are the leases which are causing the problem.

How can I be sure if it affects me?

If you have a copy of your lease you can either email Mark (mbs@ker.co.uk) with a copy or look at the first clause under the ‘Rent review’ heading. This will indicate the type of rent review you have. If you don’t have a copy of your lease you can call the solicitor who acted for you in the purchase and ask for a copy.

What if I am selling?

It is crucial that you sort out this issue as any subsequent owner will not qualify for the variation (and for that reason is unlikely to buy your flat or house until the variation is completed). As the process can take several months we recommend you start as soon as possible. We can of course also deal with the sale for you at the same time.

Will the rent reduce if my rent has already doubled following the first rent review?

Rent continues to be paid under the current lease arrangements until the lease is amended however it appears that upon the new Rent Payment Date (usually 1st January in each year of the lease) the rent will be reduced to the original rent subject to a RPI review of that original rent. Any doubled rent paid in the meantime will not be refunded.

Also bear in mind the timescale for this process – it can take several months to complete this process because it is not only you involved. The freeholder and the management company (if any) will also have to sign the variation. Your lender (if any) will also need to provide consent. There are also a lot of these processes going on so we are seeing delays in the freeholders issuing the necessary documents in the first place. To be safe you should instruct us 3 months before any rent review but even then a satisfactory outcome may not be guaranteed.

Are there any other pitfalls?

Until you finally complete the lease variation the rent will continue under the current regime. You do not get any credit back for rent which is paid, usually in advance for the whole year, so if the matter ticks over to 1st January when most Taylor Wimpey grounds rents are payable you will be required to pay the ground rent in full.

Are there any alternatives?

As part of this process Taylor Wimpey will ask you to waive any claims you may have against them. You may not like that but there is no way to avoid that if you want to proceed on the volunatry basis.

Clearly you will not be willing to do this if you want to pursue Taylor Wimpey in any legal action. There may be class actions taken against the developer or alternatively the solicitors who acted for you in the purchase especially if they were “pet lawyers” recommended by the developer as approved for acting for buyers. The implication is that these lawyers did not advise you properly of the risk.

However litigation is not straightforward.

The lawyers may say they advised you properly ( for example did you fully read that report they sent to you with the contract to sign? Did this contain reference to the ground rent?). It could also be argued that an escalating ground rent provision is more a point for the surveyor than a lawyer. There may be many problems in bringing a claim and each claim may turn on the specific facts.

The point is that a legal action is uncertain and you may end up with nothing. It can also be expensive if you end up on a losing side and are asked to pay costs.  It is worth noting that you can only recover your actual loss so there will be no massive damages payment for stress or loss of chance unless there are specific facts to back this up.

There is also importantly a requirement in English law for you to try and minimise or mitigate your losses. If you are offered a simple solution by Taylor Wimpey and you do not take it up it may be argued that you have failed to mitigate and therefore the claim for this aspect may be lost (on the basis you could of fixed the problem at no cost to you).

Will therefore litigation leave you in a better position? This is all just broad advice. You will therefore need to answer that. This article is clearly not specific advice on your circumstances.  As we are not litigation lawyers engaged in any such claims if you wanted to explore this possibility before going down the voluntary route then you would need to seek specialist advice from such a litigation lawyer.

The other possible alternative is to await the outcome of the goverment consultation on leasehold but it seems unlikely that this will result in a retrospective reduction in ground rents in existing leases as there are many large investors and other interested parties (e.g. both Avivia and the John Lewis Pension fund have been mentioned in the press as having ground rent investments in their portfolio) which have invested in ground rents who would certainly resist a loss in the value of their assets. Again this is an uncertain outcome and currently there is no fixed timescale on the process.

Where can we help?

If you decide to progress with the Ground Rent Review Assistance Scheme we can help you on the legal side. We have dealt with other matters with Taylor Wimpey using this scheme. We can assist you with these matters whether you have a single flat or 20 flats. Please contact Mark Sadler, Partner on 01708 757575 or email mbs@ker.co.uk for further information or to instruct us.

You can also complete on our pdf forms below or complete the following on line form: