When is my landlord considered a ‘missing landlord’ and when can I make a ‘missing landlord’ claim?
It is important to note that a missing landlord claim cannot be made if your landlord is a company. If your landlord is a company that is no longer registered at Companies House, the Treasury Solicitor will instead need to be contacted in respect of the defunct company.
A missing landlord claim can only be made in respect of a freehold interest which held in the name of one or more individuals.
Before any kind of ‘missing landlord’ claim can be made, as your instructed solicitor, we will seek to make all reasonable attempts to locate your landlord and these attempts will form the evidence required for the court application. This will include writing to their last known address and any other known addresses, instructing a tracing agent to search for your landlord, searching the probate registry and placing adverts in at least two local newspapers to try and locate the missing landlord.
If your landlord remains missing after we have made all reasonable attempts to find them, then your landlord will be considered a missing landlord. You can then proceed to make a missing landlord application provided that you fulfil all the other criteria required to make your specific claim, for example, you are required to own your flat for at least two years before you can make a lease extension claim in respect of your flat.
What claims can be made when there is a missing landlord?
The following claims can be made when there is a missing landlord:-
- Collective enfranchisement claim by owners of flats in a Building to jointly acquire the freehold interest in their building;
- Lease extension claim by an owner of a flat in a Building to extend the lease over their flat;
- Freehold enfranchisement claim by an owner of a leasehold house to acquire the freehold interest in their house;
- Lease extension claim by an owner of a leasehold house to extend the lease over their house.
If you are intending to make a claim to acquire your freehold jointly with other flat owners in your building, you may also qualify to make a claim for an Acquisition Order. It is only beneficial to seek an Acquisition Order if any lease or leases have under 80 years remaining on their terms when the application to court is made. An Acquisition Order has a more favourable valuation method which does not require you to pay the ‘marriage value’ element of the premium which considerably increases the premium.
You can only apply for an Acquisition Order if the Landlord is failing to carry out their obligations under the lease or leases. Therefore, if your Landlord is missing it can be demonstrated to the Court that they are failing to comply with their obligations under the leases.
If the Landlord does not have any obligations under the leases or is not significantly failing to carry out any obligations that they do have under the leases then you are very unlikely to be successful in your claim for an Acquisition Order. We will advise to you at the outset of our recommendations of the type of claim which should be made for your building.
What is the difference between seeking a Vesting Order and an Acquisition Order where there is a missing landlord?
A Vesting Order will be granted to you if the court is satisfied that the tenants and the building qualifies for the claim and that the landlord is missing. There is no ‘fault-based’ criteria that needs to be fulfilled and therefore once we have made the application it is very unlikely that you will not be granted the Vesting Order. A Vesting Order can be granted in respect of a lease extension or enfranchisement claim.
An Acquisition Order requires the tenants to prove that the landlord is not carrying out their obligations under the leases, for example for arranging buildings insurance or dealing with the maintenance of the building. This means that making the Order is discretionary for the courts and there is a higher risk that the court will not make the Order sought. However, the saving in respect of the premium may be significant if the term(s) remaining on the lease(s) are less than 80 years which may make the benefit of the saving outweigh the risk of the court not making the order. An Acquisition Order can only be granted in respect of an enfranchisement claim and not a lease extension claim.
What is the total cost of making a missing landlord claim?
Depending on the specific claim that you are making, generally, the total cost of making a missing landlord claim will be comprised of:-
- Premium/Your share of the premium – this is the payment that will be made to the landlord in consideration for the transfer of the freehold interest or the grant of the lease extension. You will need to instruct a specialist enfranchisement valuer at the outset of the matter to advise on the value of the landlord’s interest, that is, the premium that you can expect to pay for the freehold interest or lease extension. Your valuer will also usually produce a report which will be sent to the court or tribunal (depending on the specific claim) to assist the tribunal with determining the premium which should be paid for the lease extension or the freehold. Acquisitions Orders differ slightly where the tribunal will appoint its own valuer to determine the premium payable for the freehold interest.
- Your costs/Your share of the tenants’ costs – this will include the cost of your solicitor, your barrister and your valuer, plus any disbursements, for example, Land Registry fees, Court fees, Tribunal fees, bank charges, stamp duty, etc.
In view that the Court Order is only granted due to your landlord’s default in dealing with their tenants, if you are successful in obtaining the Order we would ask the Court to award costs in connection with the Court application in your favour. If the Court agreed to do so (which in most cases they would) the costs awarded would be deducted from the premium you pay for the freehold or the lease extension.
Another advantage of proceeding with a missing landlord application is that the tenants will not be responsible for the landlord’s legal and valuation costs (which they usually are if the landlord is not missing), provided that the landlord continues to be missing throughout the process.
How long will a ‘missing landlord’ claim take?
Unfortunately, it is difficult to estimate how long a missing landlord claim will take as it will depend on how long it takes for the court to list a hearing. Some courts can take many months to list a hearing and after the court hearing in most cases we will also need to make a subsequent application to the tribunal for determination of the price payable so please do be prepared for the missing landlord claim to take well over a year until it is completed.
We recommend that you commence your claim as soon as possible if you have a missing landlord, especially if you are intending to sell your property. We always ensure that we proceed diligently and efficiently with your matter to ensure that the court application is submitted as soon as possible.
What is the procedure for dealing with a missing landlord application?
Once instructed, we will carry out all the pre-application legal work. This will include obtaining copies of the freehold and leasehold Land Registry titles and leases, investigating the same, checking you qualify to commence the claim that you are applying for and addressing any issues that arise.
We will then make all reasonable attempts to find your missing landlord, which includes writing to all known and previous addresses, instructing a tracing agent to locate the landlord, searching the Probate Registry and placing adverts in local papers.
If you are making an application for collective enfranchisement of a group of flats in a Building, we will prepare a participation agreement, which is an agreement between you and the other participating flat owners to confirm their obligations to each other including agreement in respect of their individual shares of the premium and costs.
We will then prepare and issue the court application, which will comprise all the documentation which has been gathered as part of the preliminary legal work, including the titles to the property and evidence of all the work that has been carried out to try and locate the landlord.
The court will then set a date for a hearing, which is usually only a short hearing of up to 2 hours, and we will instruct a barrister to attend the hearing on your behalf and present your case. We would usually instruct a junior barrister to keep the costs down as it is normally a straightforward hearing.
On the basis that the court makes the order that has been applied for, unless the court has determined the premium, the matter is then transferred to the Tribunal for a determination of the premium payable (which is usually determined with a paper hearing so there is no need for the parties to attend an oral hearing).
Once the premium has been determined, we will arrange to lodge the completion funds with the Court Funds Office and complete the matter.
Following completion we will deal with all the post-completion formalities, including paying stamp duty (if any) and registering the transfer or lease at HM Land Registry.
If it is a collective enfranchisement claim that you have completed, we will then deal with your individual lease extensions.
How can LEASE Law help me with my missing landlord claim?
LEASE Law are specialist solicitors who can act on your behalf in respect of the legal requirements for acquiring the freehold or extending your lease where you have a missing landlord. In the vast majority of cases, we are able to offer a fixed fee for acting in respect of an undisputed missing landlord claim. If you are making a collective enfranchisement or freehold enfranchisement claim, we will also advise you if we think that you are likely to be successful obtaining an Acquisition Order claim and whether there will be any significant saving to you for doing so.
The work that we will carry out for you includes investigating the title to the property and ensuring that you qualify to make the claim that is sought, making all reasonable attempts to find your landlord, drafting and serving the court application, instructing a barrister to appear at the hearing, making any necessary Tribunal application, dealing with completion of the matter, paying any stamp duty (if required) and registering the new lease or Transfer Deed at HM Land Registry. We will also liaise with your specialist valuer in respect of the premium when necessary.
We can also recommend specialist lease extension and enfranchisement valuers who have extensive experience and expertise in this area to advise you on the premium and provide an expert report to be sent to the court (and possibly Tribunal) with your application.