Differences: shared ownership lease and ordinary long lease

A shared ownership lease of a house does not qualify for the right to purchase the freehold, under the provisions of the Leasehold Reform Act 1967, if there is a provision in the lease for the freehold to be transferred on the purchase by the leaseholder of the remaining share in the property (referred to as the final staircasing). Other exemptions apply if the leasehold house was provided for the elderly or within a designated area referred to as a protected area.

A shared ownership leaseholder of a flat only qualifies for the statutory right to extend their lease as the holder of a “long lease” if they have “staircased” up to 100% ownership. However, the landlord may have their own policy of allowing lease extension where there is less than 100% ownership. Leaseholders would need to check with their landlord.

As rent is paid on that part of the equity not owned by the leaseholder, a landlord can take action to repossess the property for rent arrears in the county court in the same way that a landlord of an assured shorthold tenancy can under the provisions of the Housing Act 1988. If the property is repossessed in these circumstances no compensation is payable to the leaseholder to take into account the balance, between the leaseholder’s debt and the market value of the leaseholder’s share in the property.

Homes England approved shared ownership leases must contain core clauses. We have listed the clauses below, but for more information you can read the Capital Funding Guide by Homes England.

The clauses are listed below:

• Shared ownership leases prohibit subletting by leaseholders to protect public funds and ensure applicants are not entering shared ownership for commercial gain.
• Whilst shared ownership leases must prohibit subletting by the leaseholder Homes England’s model shared ownership lease does not prohibit the leaseholder from taking in a paying guest or lodger.

Providers must consider requests to sublet on a case-by-case basis. It is the provider’s decision as to whether they agree to the request and permit subletting. Providers must consider the following issues when dealing with requests:

• Do the reasons for subletting genuinely stem from unavoidable need, and are not primarily for speculation or gain?
• Does the person(s) to whom the leaseholder sublets also satisfy the provider’s criteria for shared ownership?
• Are the terms of the sublet for a fixed period during which the shared owner will retain ownership of the lease?
• If required, does the leaseholder have the permission of the mortgage lender?

• Under a shared ownership lease the landlord will normally have “pre-emption” rights if the leaseholder has not staircased up to 100% ownership.
• This clause means that if the leaseholder wishes to sell they have to offer the property to the landlord first, or to a purchaser nominated by the landlord. The purchase price is determined by an independent surveyor appointed by the landlord.

If the landlord does not exercise their pre-emption rights within 8 weeks the leaseholder can sell in the open market, subject to conditions. For all new grant-funded shared ownership homes delivered through the Affordable Homes Programme 2021-2026 and shared ownership homes delivered through Section 106 the resale nomination period is reduced from 8 weeks to 4 weeks.

Rent payable on the landlord’s share

The specified rent is the amount you pay on the equity share retained by the landlord. This will vary depending on the percentage you acquired and any staircasing since first purchase. The lease will have an initial rent, usually based on a sum equivalent to 3% of the outstanding equity retained by the landlord.

Increases

Specified rent is usually subject to periodic increases as set out in the lease.

If you signed your lease before 12 October 2023

The most your rent can go up by is the percentage increase in the Retail Prices Index (RPI) for the last 12 months plus 0.5%.

If you signed your lease on or after 12 October 2023

Check the terms of your lease to see how much your landlord can increase your rent by. It will be either:

• the Retail Prices Index (RPI) plus up to 0.5%
• the Consumer Prices Index (CPI) plus 1%

All shared ownership leases must contain a clause providing for the payment of a service charge. In the case of shared ownership flats this will be in the same terms as any other lease of a flat. The shared ownership leaseholder needs to be aware that they will pay the full service charge and not a proportion in accordance with their equity share.

Where there is a shared ownership lease of a house, the leaseholder will be responsible for maintaining and repairing the property and the only service charge payable will be in respect of buildings insurance.

There is an exception to this general rule where a leasehold house is located on a private estate; in this case a service charge may be payable for the maintenance of the common parts of the estate such as pathways, private roads and other amenity areas. An obligation to pay towards these costs would typically continue if the leaseholder acquired the freehold of the house.

For all new grant-funded shared ownership homes delivered through the Affordable Homes Programme 2021-2026 and shared ownership homes delivered through Section 106 there is a 10 year period during which the landlord will support the shared owner with the cost of repairs and maintenance in new build homes.

This clause is designed to protect a mortgage lender’s security and to encourage mortgage lenders to advance loans on shared ownership leasehold properties. A lender under the mortgage protection clause is entitled to acquire and dispose of 100% of the equity in the property and must be informed by the landlord if they intend to take possession or initiate forfeiture proceedings. If the lease does not contain a mortgage protection clause, a borrower will find it extremely difficult to obtain a mortgage.

The conveyancing solicitor acting on behalf of the buyer is required to forward a copy of the mortgage to the landlord for approval and must obtain and deposit with the title deeds after completion of the purchase an undertaking from the landlord to the mortgage lender confirming that they will notify the mortgage lender if they intend to repossess the property or forfeit the lease.

Because of this requirement, earlier shared ownership leases, typically granted by local authorities, which do not contain a mortgage protection clause, are difficult to sell. This is because mortgage lenders appear reluctant to lend in the absence of a mortgage protection clause.

If you own such a property you should consider asking the landlord to provide a deed of variation to include a mortgage protection clause in the lease. If they refuse, a leaseholder should consider contacting Homes England who may bring pressure to bear on the social sector landlord to provide the deed of variation.

The majority of shared ownership leases must contain a clause allowing the leaseholder to purchase additional shares in the property until they own 100% of the equity. This is known as staircasing. In the majority of shared ownership leases the leaseholder is allowed to make 3 such applications and the last application must result in the purchase of the remaining shares. Since September 2011 there is no restriction on the number of staircasing applications that can be made.

There are some shared ownership leases of houses in protected rural areas that restrict the right of the leaseholder to purchase shares to 80%, or where the leaseholder is allowed to staircase to 100% of the equity/he is under an obligation to sell the property back to the landlord or nominated purchaser, which may be another housing association.
In addition to the rural area exception a shared ownership leasehold property for older persons can limit the equity share to 75%.

For all new grant funded Shared Ownership homes delivered through the Affordable Homes Programme 2021-2026 and Shared Ownership homes delivered through Section 106 the standard minimum staircasing is reduced from 25% to 10% and there is introduced a new gradual 1% staircasing process.

SDLT may be payable on the sale of a new shared ownership property and the sale of an existing lease of a shared ownership property.

The thresholds for payment of SDLT change on a regular basis and any prospective purchaser or vendor of a shared ownership property should take advice from their conveyancing solicitor.

Please be aware the Leasehold Advisory Service does not provide advice on tax issues.

Joint Guidance on Shared Ownership for England produced by the Council of Mortgage Lenders (CML), Homes and Communities Agency (HCA), and the National Housing Federation (NHF)