ABArriSter’SroleinAleASeextenSion ClAim Whenaleaseextensionclaimgoeswrongits timeto


appointabarrister toworkonyourbehalf, says StAn gAllAgher


Applying for A leaseextension should be less complex than a collective enfranchisementapplication. Allthe leaseholder is trying to do is to substitute the existing lease of the flat for one that is 90 years longer and will usually be in the same terms as the existing lease, save that the ground rent has been extinguished. What couldpossiblygowrong?Intheory


agreat deal,though, in practice, particularly in thecurrent nervous propertymarket, most claimscompleteinamoreorless satisfactorymanner on terms agreed throughnegotiations betweenthe parties, usually conducted through the respective valuers. However, this is not always the case. It iswhen (or preferably before)


Get good advice froman experienced solicitor


themat theLVT.There will also be Stamp Duty Land Taxtopay if thepremiumis more than £125,000 (refer toHMRC forcurrent rates) as well as Land Registry fees andother costs such as search fees. The leaseholder is also expectedtopay thelandlord’sreasonablelegal andvaluation fees.Legal fees arelimited to thecostsrelated to considerationofthe Notice; requestingdeduction of titleand thestatutory deposit; requestingaccessdetails in order to carryout thevaluation andthe valuer’s fee; and dealing with all aspects of conveyencing throughtocompletion. Thepremiumpaid forextending thelease is established from the outset by the valuer and the way this is calculated is explained in detail on page 49.


GettinG it riGht Reasonswhy a lease extensionmay not be granted are: nIf thereare inaccuracies in theoriginal Notice; nIf thepremiumoffered in theNoticeis unreasonably low; or nIf thepropertyhas notbeenowned and registered at theLandRegistryfor aperiodof two years. Tomake sure your leaseextension goes throughassmoothlyaspossible it is vital that you get good advice froman experienced solicitor. Leaseholdenfranchisement is a complex field of lawsomake sure you get it rightfirst timeandchooseasolicitor and valuer with aproventrack record in the leasehold sector.●


grahamJaffe and KatieCohen arePartnerswith JPCLaw email gjaffe@jpclaw.co.uk and kcohen@jpclaw.co.uk tel 020 7644 7260 and 020 7644 7261 Websitewww.jpclaw.co.uk


Flat Living Autumn2011


complications strike that it is important to obtain specialist legal advice,whether from a barrister, or froma solicitor with sufficient experience in enfranchisementlitigation i.e. in dealingwiththe Court or LVT/Upper Tribunal fallout froma contested claim. Specialist advice is likely to be required


where the landlord responds to the leaseholder’s notice of claim by denying the right to a lease extension and/or asserting that the notice of claim is invalid. It is particularly important to ensure that


theclaim is effectivewhen, as frequently occurs on the sale of a flat with a short unexpiredlease term,the flatissold with the benefit of a tenant’s notice of claim served by thevendor leaseholder. In such cases, if it goes wrong, it will not be possible forthe purchasertoserve afurther tenant’s notice until the purchaser hasowned the flat foratleast twoyears.The resultantdelay could be disastrous, particularly if the lease has less than two years to run. What if theextentofthe premises


originallydemisedbythe existinglease does not accord with the facts on the ground, sayif, over theyears,the leaseholder, or a former leaseholder, has incorporated the roof void into the flat, or erected a balcony on aflat roof outsidethe flat, or taken exclusive possession of land that started out as communalamenity land or parking, or has otherwise encroached upon the landlord’s retained property.Depending on the circumstances itmaybe that these additional areas should be treated as accretions to the existing lease and therefore fall to be included in the extended lease granted on a lease extension claim. Pursuing such a claim will require specialist legaladvice.


AtaLVT valuationhearing (whichwill be required if the claim is admitted but the parties cannot agree the premiumfor the newlease) a valuer will often be retained to act in a dual role, as both advocate and expert witness. In a typical lowto mediumvalue claim this should be


51


acosteffective approach (asthe LVTonly hasverylimitedpowers toawardcosts each side will pay itsown costs of the hearing regardless of the outcome). Thefactors that pointtoinstructinga


barrister for the hearing are first, value i.e. howfar thevaluersare apartand second, legalcomplexity. For exampleifthere is a valuation-sensitivedisputeastothe terms of the existing lease, such as its rent review provisions, or the extent of its restrictions on sub-letting or alterations. To thisIwould addthatthe role of


advocateatahearing is fundamentally different to that of the expert witness. The advocate’sdutyistopromote theinterests of the client bymaking submissions as to the lawon point and the factual and expert evidence before the LVT. The advocate cannot give evidence or ventureapersonal


Theroleofadvocate… is fundamentally


different to that of the expert witness


opinion as to thelawor thefacts (unless asked to do so by the LVT,which, generally, should not happen). An expert witness on the other hand owes an overriding duty to theLVT to assist it by giving independent, objective andunbiasedexpert evidence, in otherwords,totellthe LVTwhatthe expert’s true opinion as to the disputed values is. An expert witnessdoublingupas


advocate necessarily involves trying to wear twoquite differenthats. As afashion statement this is fraught with danger anditisunlikely to be practical in rough conditions.●


StangallagherisaBarrister at TanfieldChambers, London, specialising in landlord&tenant law


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