If the deceased was a qualifying tenant under the law, you would have the right to extend the lease within two years of the grant of probate or letters of administration.
The deceased would be a qualifying tenant, if their lease was more than 21 years when originally granted and they had been the registered owner of the flat for 2 years before their death.
Alternatively it may be possible to extend the lease informally by agreement with the landlord. If you are informally negotiating there are no rules and so you cannot insist on the landlord agreeing to grant an extension. All you can do is to negotiate.
Lease extension can be a difficult process. We recommend you get professional help from a solicitor and surveyor with experience in this area.
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The first thing to note is that the service charge debt is owed by the estate of the deceased leaseholder therefore any claim for service charges or ground rent would have to be presented to the executors of the estate. Sometimes, family members of the deceased offer to settle the debt in advance of probate being obtained and then reclaim the expenses from the estate. There is no obligation on family members to do this and therefore it is a matter for negotiation between the landlord and family members.
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At present there is no legislation limiting or preventing landlords of retirement properties from applying age restrictions to their tenancies. It must be noted that such properties are built specifically for people who require assisted living and it is often viewed that it will be contrary to the ethos and purposes of the community living within the development if other people are allowed to live there.
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Leases of retirement properties are slightly different to other leases because these developments are built specifically to meet the needs of the elderly who wish to live independently but within a sheltered community. Typically, retirement leases will have clauses limiting the age, category of persons and restricting who the property can be sold or sublet to. The lease may also provide for a resident warden system/caretaker or house manager’s flat which you may have to pay for. They also often contain exit fee clauses which apply at the time of sale or subletting.
When you buy the property it is extremely important that your solicitor explains what the clauses in your particular lease mean because it is very difficult to vary retirement leases afterwards.
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The terms of your lease will determine whether you can sublet your flat. If your lease allows you to sublet, it may have conditions attached to it. Most retirement properties will limit the category of persons that you can sublet it to e.g. you can only sublet to over 55’s. Some leases may require you to get the landlord’s consent before subletting and your landlord may require you to pay a consent fee. The reasonableness of a consent fee can be challenged as an administration charge at the First-tier Tribunal (Property Chamber).
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An exit fee (sometimes referred to as a transfer fee) is a charge that under the terms of the lease is levied by a landlord at the point of sale of a retirement property.
The obligation to pay these fees is normally fixed by the covenants in the lease. The method of calculating these fees are also fixed by the covenants in the lease.
There is no legislation governing exit fees as this is a private contract entered into by both parties.
A report published by the Office for Fair Trading found these terms to be unfair and set out a number of general principles that all landlords should comply with.
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At present it is extremely difficult to challenge exit fees because they are not legally classified as a “service charge” or an “administration charge”. Therefore you cannot make an application to the Tribunal to determine cases relating to exit fees.
However, the Office of Fair Trading (OFT) undertook an investigation on whether exit fees are an unfair contract term under the Unfair Consumer Contract Terms Regulations 1999 (UCCTR 1999). It is worth noting that UCCTR 1999 does not apply to leases entered into BEFORE July 1995.
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These fees include “transfer”, “contingency”, “deferred-management” and “selling-service” fees. Fundamentally, all of them are triggered by an event (such as resale or sub-letting).
Leases of retirement flats and bungalows often include a fee triggered by certain events, such as when the owner sells or sub-lets their property. These fees are typically set at around 1% of the property sale price but may be as high as 30%.
