Sale and Rent Back Court Case Wreaks Havoc
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A couple who purchased their neighbour’s house to help him out of financial difficulty 20 years ago have been ordered by a judge to give him a 90 year lease at a fixed rent of only £800 for the whole term.
David and Sheila Harding who purchased the property from their neighbour Colin Gregory now want to sell to fund a new life in Spain, but in the possession hearing were branded by the judge as “foolhardy in the extreme” and refused permission to appeal.
Mr Gregory told his neighbours, the Hardings, of his difficulties in paying his mortgage. To assist the Hardings purchased his property for £143,000 in 2001 with a “Buy to Rent” mortgage allowing Mr Gregory to stay in his home at an agreed rent of £800pcm.
The property was recently offered back Mr Gregory to purchase for £60,000 less than the now £310,000 value and he was given a year to find the funds, which he was unable to do.
The Hardings eventually found a buyer that agreed to continue renting to Mr Gregory at an increased rate of £1,200. This was refused by Mr Gregory and the case went to Brighton County Court in March 2016 where Mr Gregory said he sold the house to the Hardings for a reduced price, only because he could rent it for as long as he wanted.
We have not seen the actual tenancy agreement, but there was apparently no mention of the life time occupation and fixed rental in the documents.
The decision by the Judge will also adversely affect the security of the lender, who could well force a sale through LPA receivers for breach of contract with a 90 year lease. The property could be valued as little as 20 times rent (£800 x12x20 =£192,000), which is roughly what freehold ground rents trade at
The case was won by Mr Gregory’s solicitor using two extremely old pieces of law which included:
- The 1925 Property Act under which he apparently has the right to pay £800 for the next 90 years.
- The 1948 Bannister v Bannister case where a woman was given the right to live rent free for life in a cottage she sold to her brother for under market value.
The Hardings were ordered to pay Mr Gregory’s costs of £11,000 and they can now only sell the property to a buyer prepared to rent to Mr Gregory for 90 years at £800 pcm.
Although the Judge refused the right to appeal Property118 was also refused this by Mr Justice Teare in our case against West Brom. Mark Smith (Barrister-at-Law) then won the right and Mr Justice Teare was proved wrong by our later win in the Court of Appeal.
There is a process to take this further, but it depends on what the tenancy agreement says and if it is an AST or an Assured tenancy. Even if the landlord hadn’t properly served s13 he had the right to do so. Surely, that alone would be grounds for an application to appeal?
If anyone out there knows the Hardings please get them to contact Property118 so we can investigate if there is the possibility to win a right to appeal. Time is of the essence!
We also need to ascertain how many Sale and Rent Back (SARB) agreements and mortgages this case could affect in the future as a precedent.
Mr Harding said after the case, “‘We tried to help out, not only as a good neighbour and landlord, but we considered Colin a good friend.
“We own it, we pay the mortgage on it, we bought it but due to a nearly 100 year old law he gets to live in it on the cheap. We have nowhere to turn to and can’t believe it has turned out like this.
“We went into court told by our solicitors that there would be no problem and walked out with him winning the case and us owing him costs. It’s ludicrous. There is nothing more we can do.
“We want to warn other people who are thinking of entering into any kind of agreement like this. We did everything by the book and look where it ended up.
“Nobody had ever heard of the law the solicitor used but it has cost us dearly. We’re stuffed!”
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Beware BICT Copycats
There are now several ‘copy-cat’ structures which appear very similar to the BICT “Beneficial Interest Company Transfer” structure being offered by tax-planners but many of them do not obtain non-statutory clearance.
BICT is a legal structure which enables landlords to avoid the costs associated with refinancing at the point of incorporation. It has no tax advantages but it does afford an opportunity to keep attractive mortgage facilities in place.
However, when BICT is done badly it can have dire tax consequences.
We have mystery-shopped some of the copy-cat companies and it is very clear that they are offering extremely dangerous advice, in that the structures they are promoting fall short of delivering all of the promises they make. For example, some are transferring beneficial interest using a Deed of Trust but are completely overlooking the importance of a professionally drafted Business Sale Agreement and a Clearing Agency Contract between the company and the mortgage borrower. Many lenders will not accept mortgage payments from companies, hence the payments are being made to the landlord who in turn pays the mortgage. This is fine in principle, but there could be major tax consequences if the paperwork is wrong or if there isn’t any at all. We suspect many of the landlords using these ‘copy-cat’ schemes will find that their mortgage payments will be deemed to be income paid to them by their company and taxed accordingly by HMRC, which is very worrying indeed.
We think one of the reasons Property118 Limited has been so successful of late has been due to our fee charging structure in regards to assisting with non-statutory clearance applications. Our fee is just £1,500 + VAT but that is refunded in full if clearance is declined. That peace-of-mind seems to be making all the difference.
Incorporation using the BICT structure is only one of the tax planning strategies recommended by Property118 Limited. This is because there is no ‘one-size-its-all’ solution. For this reason, an initial consultation is required to establish the current position and future aspirations of clients prior to an analysis and a detailed written report being prepared and followed up with a telephone or Skype based Q&A session. Clients of Property118 Limited are encouraged to include their accounts in this process and this in turn often leads to those accountants referring more of their clients. The fee for these consultations is £400 and comes with a guarantee of total satisfaction or a full refund.
The legal work associated with the implementation of BICT incorporation is always referred by Property118 Limited to Cotswold Barristers where clients own properties in England & Wales. For clients in Scotland, an Edinburgh legal firm provides additional assistance in regards to preparing the paperwork and dealing with LBTT returns, which are invariably £nil for business partnerships.
Mark Smith, Head of Chambers at Cotswold Barristers said; “we are delighted with the symbiotic relationship with Property118 Limited and the work flowing therefrom. We reciprocate wherever possible and fully anticipate the number landlords using the BICT strategy for incorporation to continue to increase”
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Beware Tax Planning Models Using LLP’s
If you are being advised to use an LLP as a stepping stone towards incorporation then you have good cause to be wary.
There is a business model which is doing the rounds at the moment which relies on a piece of legislation which was created to deal with CGT on the liquidation of an LLP. However, this legislation is being abused and in my opinion it will not be long before HMRC comes down on it like a ton of bricks under their General Anti Abuse Rules in GAAR legislation.
When property is transferred into an LLP there can be no SDLT or CGT payable. That is a fact.
It is also a fact that if the partnership geuinly fails and is liquidated then the base costs for calculating CGT is the value of the properties at the point they were transferred into the LLP.
At face value this is all great news because at the time the properties are transferred to the LLP they may well be worth considerably more than they cost to acquire.
However, if you enter into a LLP with the sole intention of liquidating it at a later date to avoid tax that is without doubt abuse of the tax system and HMRC are going to be far from happy about it. My concern is that 1,00’s of LLP’s are currently being formed for exactly that purpose.
It doesn’t take a rocket scientist to see how HMRC will see straight though this.
If you form an LLP today, liquidate it after say one year and then a company, which has exactly the same owners miraculously decides to acquire the same assets it is pretty obvious what has occurred.
If this structure has pitched to you please consider very carefully what I have said above. You could find an unwelcome tax demand on your doormat for all the CGT you have avoided at some point in the weeks, months or even years after you have liquidated.
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Devon landlord receives prison sentence for unsafe DIY gas work
Gas Safe:
Allan King an Ilfracombe landlord was given a suspended jail term plus a £14,000 fine for endangering the lives of his tenants with DIY gas work in his rental property.
Exeter Crown Court on 4th August heard that in September 2016 King replaced a boiler himself at his rented property on Arcade Road, this despite have no training in gas work and not being registered with the Gas Safe Register.
After the boiler developed a fault a month after the fitting, King called in a gas engineer for assistance. The engineer immediately recognised the DIY botch job and realised the boiler was risking the tenants’ lives, so he isolated. Following this The Health and Safety Executive (HSE) was informed and it launched an investigation.
It seems that King had had a previous warning in July 2016 from The HSE that only a member of Gas Safe Register is allowed to work on gas appliances.
King of Arcade Road, Ilfracombe pleaded guilty to breaches of the Gas Safety (Installation and Use) Regulations 1998 and the Health and Safety at Work Act 1974. He was sentenced to nine months imprisonment suspended for 18 months and fined £3,000. He was also ordered to pay costs of £12,184.14.
HSE Inspector, Simon Jones, speaking after the hearing, said:
“Landlords have a legal duty to ensure that any gas work at their rented properties is only undertaken by a member of Gas Safe Register.
“In this case, Mr King ignored previous warnings and undertook his own DIY gas work for which he had neither the competence nor credentials.”
”His actions were dangerous and put his tenants’ lives at risk’
A Landlord’s Responsibilities with Gas:
When letting a property that contains gas and gas appliances (including lodgers in a landlord’s own home) these precautions must be followed by law:
- Make sure gas fittings, flues and appliances are installed and maintained in a safe condition in accordance with the manufacturer’s service instructions. If these are not available it is recommended that they are serviced annually, unless advised otherwise by a Gas Safe registered engineer
- Have an annual gas safety check carried out by a Gas Safe registered engineer on each gas appliance and flue and a Gas Safety Certificate issued.
- During the tenancy, or before any new tenancy starts, make sure the Gas Safety Certificate is current, and a copy is issued to the new or a current tenant within 28 days of the check
- The landlord to keep a record of each safety check for at least two years
Full information about landlords’ responsibilities for gas at: http://www.hse.gov.uk/gas/landlords/index.htm
A guide to landlords’ duties: Gas Safety (Installation and Use) Regulations 1998
©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – Devon landlord receives prison sentence for unsafe DIY gas work | LandlordZONE.
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Are CHL’s mortgage terms reasonable or even legal?
Over the last 18 months I have had to point out to many of my consultancy clients that CHL “Capital Homeloans” are the only lender we are aware of which specifically prohibits the transfer of beneficial interest in their mortgage T&C’s.
This causes a major headache when if comes to tax planning strategies which rely on the use of Declarations of Trust.
I always make this clear to clients who have mortgages with CHL and point out that whilst the Declaration of Trust is completely invisible to anybody unless you declare it, the risk is that if a lender with such conditions in their T&C’s was to find out that technically you would be in default. However, there is no history of CHL or any other lender having ever called a loan in on this basis. Nor has there ever been a Court case where a lender has been granted possession or appointed LPA receivers for a breach of such conditions. Given that all conveyancing solicitors have at some point implemented Declarations of Trust you have to wonder why this is?
This also makes me wonder CHL’s conditions precluding the transfer of beneficial interest are reasonable or even legal.
What business is it of a mortgage lender who gets the benefit of capital appreciation and rental profits if it has no effect on their security whatsoever?
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Headline Mortgage Rates for Limited Companies
Limited Company BTL mortgages are now available up to 85% LTV and rates start from 3.09%.
The buy-to-let market has been hit by numerous tax changes in the last couple of years. Two of the main ones being:
- the introduction of a 3% Stamp Duty surcharge
- Until April of this year private landlords could deduct both mortgage interest and other allowable costs, from their rental income before calculating the amount of tax due.
The restrictions on finance cost relief in particular has created a substantial increase in demand for Limited Company BTLs, which in turn has increased the number of lenders and products that are available for this market and this has caused a welcome reduction in the mortgage rates.
Before considering embarking on a purchase or re-mortgage in a Limited Company, the various Pro’s and Con’s should be considered:
Pros
- From 2017 to 2020, the amount of Buy to let tax relief that individual landlords can claim back will be cut from 45% to 20% for top rate taxpayers. This change does not affect Limited Companies.
- The first £5,000 of dividends is tax free, though this is likely to be reduced to £2,000.
- No income tax is payable when reinvesting profits to purchase further properties, although corporation tax is payable on trading profits.
- Limited Liability. If the company is dissolved then personal assets are protected (unless guarantees or other security is given)
- Properties within Limited Companies benefit from indexation allowances for the purpose of calculating capital gains whereas individuals get no such relief
- Incorporation relief can re-set the clock in terms of capital gains by washing them all into the value of shares created at the point of incorporation. Therefore, if the company was to sell a property the day after it acquired it there would be no tax to pay because there would be no capital gain. The historical capital gains on properties transferred into the company will only ever be paid if the shares in the company are sold. Once you die, any capital gains rolled into the shares dies too.
Cons
- No personal Capital Gains Tax (CGT) allowance when the company sells a property
- Transferring properties that are already owned by an individual into a Limited Company may be considered as a sale and purchase and may trigger a capital gains tax, stamp duty and re-mortgaging costs. Relief is available to mitigate these but only in certain circumstances. Seek professional guidance from Property118 on this point
The above is only an outline and professional advice should be taken for a competent commercial broker and specialist tax adviser.
As mentioned, the popularity of Limited Company BTLs has increased dramatically and this has increased the number of providers and products which has pushed down the costs, a trend that is quite likely to continue.
The differential in terms rates and LTVs for individuals and companies is narrowing on an ongoing basis.
In my next articles I will be looking at alternatives to traditional mortgage funding so please watch out for that.
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Generation Rent are more reliant than ever on the PRS
A survey carried out by LetBritain of 2000 UK adults shows that 39% are financial unable to purchase the home they would like and are reliant on the Private Rental Sector (PRS) to meet their needs.
In London this jumps to a whopping 49% who are unable to purchase, because of the disparity in house prices.
In a bizarre twist opposed to government policy, 27% of adults renting said they were looking to purchase a Buy to Let property to get on the housing ladder. In London 42% of renters said they would consider purchasing a Buy to Let in more affordable areas of the country.
61% of those surveyed said they blamed the government for not doing enough to help Generation Rent and 64% said they could only see the situation getting worse in the next five years.
LetBritain CEO, Fareed Nabir, added “With more and more people across the UK coming to rely on the private rental sector, the results of the research are concerning. Whilst many renters are working hard to enter the property market, they clearly do not feel the government understands the issues faced by tenants.”
“Interestingly, the findings show that Generation Rent is now increasingly looking to buy properties outside of their chosen place of residence so they can still get onto the property ladder without having to sacrifice the location or quality of the property they wish to live in.”
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We Should Be Using Net Rental Yields
I have just responded to a Facebook post by axe the tenant tax, the post was about landlords losing confidence with rental profits. The article ended with the fact that rental yields are holding up at 6% I have done some calculations and would like those good at the maths to make comment or provide alternative figures. I believe that net rental profits are down to average of 2%
Too much talk about rental yields that are gross figures ie 6%, due to the recent government taxes we should now quote net yield for greater accurately. Paying tax has now become a cost of doing business due to the loss of interest as an expense.
I did a calculation based on an average property price of £190,000, average rent of £850 per month, average loan of 60%, average interest rate of 4.5%, average running costs which included full management or an employed team for the larger landlord like myself of which costs 30% of the rent if you do your figures right, I allocated 5% of the rent for capital improvements or to go into a sinking fund for long term improvements.
The figures I came out with were that 25% of the rent goes to the tax man, 25% pays the interest on loans, 5% to the sinking fund, 30% to running costs (which includes repairs, administration costs, management for all new rules and regulations), this left 15% after tax profit for the landlord.
Now at £850 per month that’s £10,200 per year and 15% of that = £1,530 after tax profit per year.
Now let’s forget the capital appreciation because no one includes that in working out the yields, capital employed and put into the purchase of the property is 40% of £190,000 = £76,000 and the return on investment for £1,530 after tax rent on our cash investment of £76,000 = 2.01%
So big difference from the quoted figures of 6%
Any one any comments.
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What is a Section 20 Notice ?
There are two instances of section 20 notices in property in England:
(1) is the notice served in relation to early shorthold tenancies under the Housing Act 1988, and the other,
(2) refers to section 20 of the Landlord and Tenant Act 1985, as amended by the Commonhold and Leasehold Reform Act (CLRA) 2002, which involves leasehold property and consultation with leaseholders on major works.
Housing Act 1988 – Shorthold Tenancies
Prior to 28 February 1997 shorthold tenancies were not automatic (the default tenancy) as they have been for residential tenancies since the amendment brought in by the Housing Act 1996, (effective February 1997) but had to be created by informing the tenant by a prescribed form statutory notice – the section 20 notice.
A landlord wishing to create an assured shorthold tenancy was required to serve a notice under s20 of the Housing Act 1988 before the tenancy was entered into.
If the notice was not properly served (i.e. before the agreement was signed) the tenancy could not be an assured shorthold. In default it became an ordinary assured tenancy which gives the tenant security of tenure. Landlords in this position therefore could not use the not fault, s21 eviction process.
There cannot be many tenancies around dating from pre February 1997 which needed a s20 notice serving at the time, but where they do exist, landlords are unable to evict these tenants unless they can prove a s20 notice was properly served prior to the tenancy. Landlords or agents at the time would normally get the tenant to sign a statement to this effect.
Since 28 February 1997 it has not been necessary to serve a s20 notice for the tenancy to be an assured shorthold tenancy (AST).
Many mistakes were made in respect of s20 notices and many lawyers have since paid for their holidays by challenging them in possession claims.
The most common problem with this was the inability of the landlord or agent to prove that the s20 notice was served prior to the grant of the tenancy, but also in some cases the notice was not in the prescribed form.
Section 20 of the 1988 Act required the notice to be in the prescribed form stipulated in the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 (as amended). The relevant form was Form No.7
Landlord and Tenant Act 1985 – consultation with leaseholders on major works
Section 20 (s20) is a clause in the Landlord and Tenant Act 1985 which is intended to protect leaseholders from paying unnecessarily large sums for work carried out to their building. In effect it says that a leaseholder’s contribution to the cost of works will be capped if the landlord or their managing agent fails to follow a set consultation process.
Section 20 of the Landlord & Tenant Act 1985 (as amended by the Commonhold & Leasehold Reform Act 2002) sets out a three-stage consultation process which must be followed when carrying out qualifying works to a building where the contribution from any one lessee exceeds £250, or a qualifying long-term agreement where the contribution from any one lessee exceeds £100 in one financial year.
Stage One – s20
For qualifying works, under Section 20 managing agents / freeholders must serve a “Notice of Intention to Carry Out Works” on all lessees.
This Notice must generally describe the proposed works, state the reasons for considering the proposed works, and invite leaseholders to make written observations within 30 days.
It is a requirement that a correspondence address for these observations be stated within the s20 notice. The Notice of Intention offers lessees the opportunity to provide the name of a contractor from whom the landlord, managing agents or Resident’s Management Committee (RMC) can try to obtain estimates for the proposed works.
Stage Two – s20
At the expiration of the 30 day consultation period, at least two estimates should be obtained: one of these estimates must be from a person completely independent of the landlord, the managing agent or the RMC.
If nominations were made within the consultation period, then estimates should have been obtained from at least one of these nominations. The landlord/agent/RMC must then provide a “Statement of Estimates” which will set out the details of estimates that have been obtained and a summary of observations received within the consultation period.
All estimates obtained must be made available for inspection by the lessees, including estimates obtained from nominated contractors.
A “Notice to Accompany the Statement of Estimates” must also be served in conjunction with the Statement of Estimates, which sets out the hours involved, and a place where details of the estimates may be inspected, again inviting lessees to make written observations on the estimates within 30 days, and specifying the address to which those observations should be sent.
Stage Three – s20
If, at the expiration of the consultation period, the chosen contractor did not provide the lowest estimate, then a “Notice of Reasons” must be served upon all lessees.
This means that the landlord/agent/RMC must state the reasons for awarding the contract where they do not opt for the lowest estimate.
The nomination is open to a test of reasonableness by the Leasehold Valuation Tribunal (LVT) under Section 19 of the 1985 Landlord & Tenant Act.
Where it can be shown that the consultation procedure is not followed correctly, and the landlord/agent/RMC is successfully challenged at the LVT, then the maximum amount recoverable from lessees under the service charge is £250 for major works and £100 for long-term agreements.
For more information on Section 20 lease matters see these guides:
– The Association of Residential Managing Agents (ARMA) – Advice Note Section 20 Consultation and Major Works – a guide to the S.20 consultation process for major works and long term agreements.
– The Leashold Advisory Service – What is the Section 20 consultation process for major works?
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