Welsh Statutory Instruments

2002 No. 3187 (W.303)

LANDLORD AND TENANT, WALES

The Leasehold Reform (Notices) (Amendment) (Wales) Regulations 2002

Made

18th December 2002

Coming into force

1st January 2003

The National Assembly for Wales, in exercise of the powers conferred on it by section 66 of the Landlord and Tenant Act 1954(1), and of all other powers enabling it in that behalf, hereby makes the following Regulations:

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Leasehold Reform (Notices) (Amendment) (Wales) Regulations 2002 and shall come into force on 1st January 2003.

(2) These Regulations apply to Wales only.

Amendments

2. In the Schedule to the Leasehold Reform (Notices) Regulations 1997(2)—

(a)for Form 1, substitute Form 1 in the Schedule to these Regulations; and

(b)for Form 2, substitute Form 2 in that Schedule.

Application

3. These Regulations shall only apply to cases where a notice under Part 1 of the Leasehold Reform Act 1967(3) (tenant’s notice of desire to have or claim to be entitled to acquire the freehold or an extended lease) was given on or after the date these Regulations come into force.

Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998(4).

D. Elis-Thomas

The Presiding Officer of the National Assembly

18th December 2002

Regulation 2

SCHEDULE

FORM 1LEASEHOLD REFORM ACT 1967

THE SCHEDULEPARTICULARS SUPPORTING TENANT'S CLAIM

1. The address of the house.

2. Particulars of the house and premises sufficient to identify the property to which your claim extends. (see Note 4 below)

3. Particulars of the tenancy of the house and premises sufficient to identify the instrument creating the tenancy and to show that the tenancy is and has at the material times been a long tenancy or treated as a long tenancy. (see Note 5 below)

4. Particulars sufficient to show the date on which you acquired the tenancy. (see Note 6 below)

5.—(a) Particulars of the tenancy of the house and premises sufficient to show that the tenancy is and has at the material times been a tenancy at a low rent or treated as a tenancy at a low rent. (see Note 7 below)

(b)If your claim is based on section 1AA (additional right to enfranchisement only in case of houses whose rent exceeds applicable limit under section 4), particulars of the tenancy sufficient to show that the tenancy is one in relation to which section 1AA has effect to confer a right to acquire the freehold of the house and premises. (see Note 8 below)

6. Particulars of any other long tenancy of the house or a flat forming part of the house held by any tenant. (see Note 9 below)

7. Where either —

(a)a flat forming part of the house is let to a person who is a qualifying tenant of a flat for the purposes of Chapter 1 or 2 of Part 1 of the Leasehold Reform, Housing and Urban Development Act 1993; or

(b)your tenancy is a business tenancy,

the following particulars:

(i)the periods for which in the last ten years, and since acquiring the tenancy, you have and have not occupied the house as your residence; and

(ii)during those periods what parts (if any) of the house have not been in your own occupation and for what periods, and

(iii)what other residence (if any) you have had and for what periods, and which was your main residence. (see Note 10 below)

8. Additional particulars sufficient to show that the value of the house and premises does not exceed the applicable financial limit specified in section 1(1)(a)(i) or (ii), (5) or (6) of the Act. (These are not required where the right to have the freehold is claimed in reliance on any one or more of the provisions in section 1A, 1AA or 1B of the Act, or where the tenancy of the house and premises has been extended under section 14 and the notice under section 8(1) was given (whether by a tenant or a sub-tenant) after the original term date of the tenancy). (see Note 11 below)

9. Additional particulars sufficient to show whether the house and premises are to be valued in accordance with section 9(1) or section 9(1A) of the Act. (These are not required where the right to have the freehold is claimed in reliance on any one or more of the provisions in section 1A, 1AA or 1B of the Act, or where the tenancy of the house and premises has been extended under section 14 and the notice under section 8(1) was given (whether by a tenant or a sub-tenant) after the original term date of the tenancy).

10. Additional particulars where you rely on section 6 (rights of trustees), 6A (rights of personal representatives) or 7 (rights of members of family succeeding to tenancy on death) of the Act. (see Note 12 below)

Notes

1.—(a) Where the tenant’s immediate landlord is not the freeholder, the claim may, in accordance with the Leasehold Reform Act 1967, as amended, be served on him or any superior landlord, and copies of the notice must be served by the tenant on anyone else known or believed by him to have an interest superior to his own (Schedule 3, paragraph 8(1)).

(b)Where the landlord’s interest is subject to a mortgage or other charge and the mortgagee or person entitled to the benefit of the charge is in possession of that interest, or a receiver appointed by him or by the court is in receipt of the rents and profits, the notice may be served either on the landlord or on the person in possession or the receiver (Schedule 3, paragraph 9(1)).

(c)Any landlord whose interest is subject to a mortgage or other charge (not being a rent-charge) to secure the payment of money must (subject to special provisions applicable to debenture-holders' charges) on receipt of the claim inform the mortgagee or person entitled to the benefit of the charge (Schedule 3, paragraph 9(2)).

2. The landlord must (unless note 3 applies) serve a notice in reply in Form 3 set out in the Schedule to the Leasehold Reform (Notices) Regulations 1997 (or in substantially the same form) within two months of the service on him of this notice. If he does not admit the tenant’s right to have the freehold or an extended lease, the notice in reply must state the grounds on which the right is not admitted. If the landlord intends to apply to the court for possession of the house and premises in order to redevelop it (section 17) or to occupy it (section 18), his notice must say so. If he does not so intend, but he objects under subsection (4) or (5) of section 2 to the inclusion in the claim of a part of the house and premises which projects into other property, or to the exclusion from the claim of property let with the house and premises but not occupied with and used for the purposes of the house by any occupant of it, he must give notice of his objection with or before his notice in reply; unless in his notice in reply he reserves the right to give it later, in which case it must still be given within two months of the service on him of the tenant’s notice. If the landlord admits the claim, the admission is binding on him, unless he shows that he was misled by misrepresentation or concealment of material facts, but it does not conclude any question of the correctness of the particulars of the house and premises as set out in the claim (Schedule 3, paragraph 7).

3. Where the tenant’s immediate landlord is not the freeholder, any proceedings arising out of the tenant’s notice, whether for resisting or for giving effect to the claim, must be conducted by the person who is designated as “the reversioner” in accordance with paragraph 2 of Schedule 1 to the Act and he must give the notice in reply. The reversioner is the landlord whose tenancy carries an expectation of possession of the house and premises of 30 years or more after the expiration of all inferior tenancies and, if there is more than one such landlord, it means the landlord whose tenancy is nearest to that of the tenant; if there is no such landlord, it means the owner of the freehold. The tenant will be informed in the notice in reply if it is given by a landlord acting as the reversioner.

4. “Premises” to be included with the house in the claim are any garage, outhouse, garden, yard and appurtenances which at the time of the notice are let to the tenant with the house.

5. In respect of a house, “long tenancy” has the meaning given by section 3 of the Act. (Special provisions apply in relation to business tenancies — see section 1(1ZC) of the Act inserted by section 140 of the Commonhold and Leasehold Reform Act 2002). Where there have been successive tenancies, particulars should be given of each tenancy. In the case of a lease already extended under the Act, the date of the extension and the original term date should be given. In addition to section 3 of the Act, section 174(a) of the Housing Act 1985 provides for certain tenancies granted pursuant to the right to buy to be treated as long tenancies. Section 1B of the Act also provides for certain tenancies terminable on death or marriage to be long tenancies for the limited right described in note 11. Under Schedule 4A to the Act, certain shared ownership leases granted by public authorities, housing associations and registered social landlords carry neither the right to enfranchise nor the right to obtain an extended lease.

6. The claimant must have owned the lease for two years prior to the date of the application for enfranchisement or lease extension (section 1(1)(b) of the Act, as amended by sections 138 and 139 of the Commonhold and Leasehold Reform Act 2002).

7. In addition to the provision of section 4 of the Act (meaning of “low rent”), section 1A(2) of the Act provides for tenancies falling within section 4A(1) of the Act to be treated as tenancies at a low rent for the limited right described in note 11.

8. Section 1AA confers a limited right to enfranchisement (described in note 11) in the case of leases which would qualify but for the fact that the tenancy is not a tenancy at a low rent, with two exceptions. The first is where the lease is excluded from the right under section 1AA(3): i.e. where the house is in an area designated as a rural area, the freehold of the house is owned together with adjoining land which is not occupied for residential purposes, and the tenancy was either granted on or before 1st April 1997 or was granted after that date but before the coming into force of section 141 of the Commonhold and Leasehold Reform Act 2002, for a term of 35 years or less. Information as to the location of designated rural areas is held at the offices of leasehold valuation tribunals. The second exception applies to any shared ownership lease (as defined by section 622 of the Housing Act 1985) originally granted by a housing association or a registered social landlord.

9. Section 1(1ZA) of the Act (inserted by section 138(2) of the Commonhold and Leasehold Reform Act 2002) provides that head lessees do not have rights to enfranchise or a lease extension where there exist inferior tenancies which confer on the tenant the right to enfranchise and a lease extension under the Act. Under section 1(1ZB) of the Act, where there exists an inferior long tenancy (as defined under section 7 of the Leasehold Reform, Housing and Urban Development Act 1993) of a flat which confers on the tenant the right to enfranchise or a new lease under that Act the head lessee only has the right to enfranchise or a lease extension under the Act where he meets the residence requirement (see note 10 below). It is therefore necessary to provide details of any other long tenancies.

10. Particulars of residence and occupation are required in relation to those cases specified in paragraph 7 of the Schedule to this notice (see section 1(1ZB) and (1B) of the Act as inserted, respectively, by sections 138 and 139 of the Commonhold and Leasehold Reform Act 2002). The residence requirement in these specified cases is that the tenant has lived in the property as his only or main residence for the last two years or for periods amounting to two years in the last ten years.

11. A claimant who relies on any one or more of the provisions in sections 1A, 1AA or 1B of the Act, (or where the tenancy of the house and premises has been extended under section 14 and the notice under section 8(1) was given (whether by a tenant or a sub-tenant) after the original term date of the tenancy), has the right to have the freehold at a price determined in accordance with section 9(1C) of the Act, but not the right to have an extended lease.

Section 1A(1) applies to a tenancy of a house and premises the value of which exceeds the applicable financial limit. Sections 1A(2) and 1B are described in notes 7 and 5 respectively. Section 1AA (described in note 8) applies to certain cases where the long lease fails the low rent test.

12.—(a) Where the claimant is giving the notice by virtue of section 6, 6A or 7 he is required (Schedule 3, paragraph 6(2)) to adapt the notice and show under paragraphs 4 and 7 of the Schedule to the notice the particulars that bring the claim within section 6, 6A or, as the case may be, section 7.

(b)Where the tenancy is or was vested in trustees the claimant should, for the purposes of a claim made in reliance on section 6, state the date when the tenancy was acquired by the trustees, and, where the case falls within paragraphs 7(a) or (b) of the Schedule to the notice, the date when the beneficiary occupied the house by virtue of his interest under the trust, and the particulars of any period of occupation by the beneficiary which are relied upon as bringing the case within section 6.

(c)Section 6A of the Act (inserted by section 142 of the Commonhold and Leasehold Reform Act 2002) provides that where a tenant dies and immediately before his death he qualified for the right to enfranchise or a lease extension, those rights can be exercised (up to two years after the date of probate or letters of administration) by his personal representatives. Where the tenancy is vested in personal representatives, they should, for the purposes of making a claim under section 6A, provide evidence that the deceased tenant qualified for the relevant right immediately before his death, state the date when the tenancy became vested in them, and provide evidence to show that probate or letters of administration have been granted no more than two years before the date of the claim for extension of the lease or enfranchisement.

(d)Where the claimant was a member of the previous tenant’s family and became the tenant on the latter’s death, for the purposes of a claim made in reliance upon section 7, the claimant should state the date on which the previous tenant acquired the tenancy, particulars of his relationship to the previous tenant and his succession to the tenancy, and particulars in respect of any period of occupation by himself on which the claimant relies as bringing the case within section 7.

FORM 2LEASEHOLD REFORM ACT 1967

THE SCHEDULEPARTICULARS SUPPORTING TENANT'S CLAIM

1. The address of the house.

2. Particulars of the house and premises sufficient to identify the property to which your claim extends. (see Note 3 below)

4. Particulars sufficient to show the date on which you acquired the tenancy. (see Note 5 below)

6. Particulars of any other long tenancy of the house or a flat forming part of the house held by any tenant. (see Note 8 below)

7. Where either —

(a)a flat forming part of the house is let to a person who is a qualifying tenant of a flat for the purpose of Chapter 1 or 2 of Part 1 of the Leasehold Reform, Housing and Urban Development Act 1993; or

(b)your tenancy is a business tenancy,

the following particulars:

(i)the periods for which in the last ten years, and since acquiring the tenancy, you have and have not occupied the house as your residence; and

(ii)during those periods what parts (if any) of the house have not been in your own occupation and for what periods, and

(iii)what other residence (if any) you have had and for what periods, and which was your main residence. (see Note 9 below)

9. Additional particulars sufficient to show whether the house and premises are to be valued in accordance with section 9(1) or section 9(1A) of the Act. (These are not required where the right to have the freehold is claimed in reliance on any one or more of the provisions in section 1A, 1AA or 1B of the Act, or where the tenancy of the house and premises has been extended under section 14 and the notice under section 8(1) was given (whether by a tenant or sub-tenant) after the original term date of the tenancy).

Notes

1. In accordance with section 28(1)(b)(ii) of the Leasehold Reform Act 1967, this notice may not be served later than two months after a copy of the certificate has been served on the tenant.

2.—(a) The landlord must serve a notice in reply in Form 3 set out in the Schedule to the Leasehold Reform (Notices) Regulations 1997 (or in substantially the same form) within two months of service on him of this notice. If he does not admit the tenant’s claim to be entitled to acquire the freehold or an extended lease the notice in reply must state the grounds on which the claim is not admitted. If the landlord admits the claim, the admission is binding on him, unless he shows that he was misled by misrepresentation or concealment of material facts, but it does not conclude any question of the correctness of the particulars of the house and premises as set out in the claim (Schedule 3, paragraph 7).

(b)If the landlord admits the claim the tenant will not be entitled to a grant of the freehold or a new tenancy of the house and premises but, if the landlord obtains an order of the court under section 17 of the Act for possession of the house and premises in order to redevelop it, the tenant will become entitled to be paid compensation for the loss of the house and premises in accordance with Schedule 2 to the Act.

3. “Premises” to be included with the house in the claim are any garage, outhouse, garden, yard and appurtenances which at the time of the notice are let to the tenant with the house.

4. In respect of a house, “long tenancy” has the meaning given by section 3 of the Act. (Special provisions apply in relation to business tenancies — see section 1(1ZC) of the Act inserted by section 140 of the Commonhold and Leasehold Reform Act 2002). Where there have been successive tenancies, particulars should be given of each tenancy. In the case of a lease already extended under the Act, the date of the extension and the original term date should be given. In addition to section 3 of the Act, section 174(a) of the Housing Act 1985 provides for certain tenancies granted pursuant to the right to buy to be treated as long tenancies. Section 1B of the Act also provides for certain tenancies terminable on death or marriage to be long tenancies for the limited right described in note 10. Under Schedule 4A to the Act, certain shared ownership leases granted by public authorities, housing associations and registered social landlords carry neither the right to enfranchise nor the right to obtain an extended lease.

5. The claimant must have owned the lease for two years prior to the date of the application for enfranchisement or lease extension (section 1(1)(b) of the Act, as amended by sections 138 and 139 of the Commonhold and Leasehold Reform Act 2002).

6. In addition to the provision of section 4 of the Act (meaning of “low rent”), section 1A(2) of the Act provides for tenancies falling within section 4A(1) of the Act to be treated as tenancies at a low rent for the limited right described in note 10.

7. Section 1AA confers a limited right to enfranchisement (described in note 10) in the case of leases which would qualify but for the fact that the tenancy is not a tenancy at a low rent, with two exceptions. The first is where the lease is excluded from the right under section 1AA(3): i.e. where the house is in an area designated as a rural area, the freehold of the house is owned together with adjoining land which is not occupied for residential purposes, and the tenancy was either granted on or before 1st April 1997 or was granted after that date but before the coming into force of section 141 of the Commonhold and Leasehold Reform Act 2002, for a term of 35 years or less. Information as to the location of designated rural areas is held at the offices of leasehold valuation tribunals. The second exception applies to any shared ownership lease (as defined by section 622 of the Housing Act 1985) originally granted by a housing association or a registered social landlord.

8. Section 1(1ZA) of the Act (inserted by section 138(2) of the Commonhold and Leasehold Reform Act 2002) provides that head lessees do not have rights to enfranchise or a lease extension where there exist inferior tenancies which confer on the tenant the right to enfranchise and a lease extension under the Act. Under section 1(1ZB) of the Act, where there exists an inferior long tenancy (as defined under section 7 of the Leasehold Reform, Housing and Urban Development Act 1993) of a flat which confers on the tenant the right to enfranchise or a new lease under that Act, the head lessee only has the right to enfranchise or a lease extension where he meets the residence requirements (see note 9 below). It is therefore necessary to provide details of any other long tenancies.

9. Particulars of residence and occupation are required in relation to those cases specified in paragraph 7 of the Schedule to this notice (see section 1(1ZB) and (1B) as inserted, respectively, by sections 138 and 139 of the Commonhold and Leasehold Reform Act 2002). The residence requirement in these specified cases is that the tenant has lived in the property as his only or main residence for the last two years or for periods amounting to two years in the last ten years.

10. A claimant who relies on any one or more of the provisions in section 1A, 1AA or 1B of the Act, (or where the tenancy of the house and premises has been extended under section 14 and the notice under section 8(1) was given (whether by a tenant or a sub-tenant) after the original term date of the tenancy), has the right to have the freehold at a price determined in accordance with section 9(1C) of the Act, but not the right to have an extended lease. Section 1A(1) applies to a tenancy of a house and premises the value of which exceeds the applicable financial limit.

Sections 1A(2) and 1B are described in notes 7 and 5 respectively. Section 1AA (described in note 8) applies to certain cases where the long lease fails the low rent test.

11.—(a) Where the claimant is giving the notice by virtue of section 6, 6A or 7 he is required (Schedule 3, paragraph 6(2)) to adapt the notice and show under paragraph 4 or 7 of the Schedule to the notice the particulars that bring the claim within section 6, 6A or, as the case may be, section 7.

(b)Where the tenancy is or was vested in trustees the claimant should, for the purposes of a claim made in reliance on section 6, state the date when the tenancy was acquired by the trustees, and, where the case falls within paragraphs 7(a) or (b) to the Schedule to this notice, the date when the beneficiary occupied the house by virtue of his interest under the trust, and the particulars of any period of occupation by the beneficiary which are relied upon as bringing the case within section 6.

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Leasehold Reform (Notices) Regulations 1997 and provide new forms of notices to be used by tenants applying for enfranchisement and extension of long leaseholds under the Leasehold Reform Act 1967. The new forms are to be used for applications made on or after 1st January 2003. Forms which are substantially to the same effect as those prescribed may also be used.

Most of the amendments are consequential on those made to the Leasehold Reform Act 1967 by Chapter 4 of Part 2 of the Commonhold and Leasehold Reform Act 2002 which introduced the following changes to the qualifying rules for enfranchisement and lease extension:

(i)abolition of the residence test, subject to certain exceptions;

(ii)a new requirement that the tenant must have held the lease for two years;

(iii)abolition of the low rent test;

(iv)the right to buy the freehold within the term of a lease extension;

(v)new rights and qualifying rules for personal representatives of a deceased leaseholder.

There are also minor drafting amendments.

(1)

1954 c. 56. Section 66(1) and (2) was amended by S.I. 1974/1896. Section 66 of the Landlord and Tenant Act 1954 is applied to notices under Part I of the Leasehold Reform Act 1967 (c. 88) by section 22(5) of that Act. See article 2 of, and Schedule 1 to, the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672).

(2)

S.I. 1997/640.

(3)

1967 c. 88.

(4)

1998 c. 38.