Closed call for evidence

Call for evidence: Jointly owned properties

Updated 4 April 2024

Applies to England

Background:

The Building Safety Act 2022 (BSA) provides far-reaching protections for qualifying leaseholders from the costs associated with remediating historical building safety defects. The principle of our leaseholder protection package is to protect leaseholders living in their own homes in unsafe buildings. As such, there needed to be a threshold which set the right balance between those purchasing properties primarily to live in and those who have made commercial or investment decisions, whether they are freeholders or leaseholders.

The government keeps all policies under close review and has always recognised that any line drawn between those living in leasehold properties and those with a purely financial interest is a challenging one to get right. Striking a balance, though, is necessary.

The BSA has now been in operation for nearly 2 years, and following feedback we have taken the opportunity to review the qualifying criteria for obtaining the protections in relation to whether properties are owned jointly by 2 or more individuals. We believe there is a particular issue with how this impacts leasehold properties that are jointly owned. We would like to assess whether the law around this issue needs updating, and we are issuing this call for evidence to support that assessment.

Definition of landlord:

Throughout this call for evidence, “landlord” means the person who has the right to charge individual apartment leaseholders service charge, this could be a freeholder (sometimes referred to as the building owner), it could also be a head leaseholder. It does not include an agent of either of these.

Why are we launching a call for evidence?

The government is continuing to monitor the impacts of the current protections and has been made aware of a perceived issue in the qualifying criteria for the protections, for people who own their principal home jointly, and additional properties jointly. However, the department does not have any data on the number of leaseholders this issue is impacting. As part of the policy development, this call for evidence seeks to understand the scale of the issue, and to consider whether any changes could be proposed by the government. The department would therefore like to have evidence from both leaseholders and landlords on who may be affected if this policy is changed. This is why we are launching a call for evidence.

We understand a change in policy that increases the number of leases granted protections will impact on the amount of service charge for non-cladding related remediation a landlord is able to collect in an affected building. This is where additional leasehold properties in their building will benefit from the protections, and we would like to understand the impact on landlords of this proposed change in policy.

To note, this will only affect landlords of buildings in England.

How the protections currently work where a lease is jointly owned:

• The law allows for properties to be owned by up to 4 separate individuals (which can include corporate bodies). Where a leaseholder owns other dwellings, the BSA extends the protections to include no more than 2 dwellings in England, apart from their interest under the lease in question.
• Where the lease is jointly owned, then the protections apply where any leaseholder owns or has a joint or partial ownership interest in no more than 2 additional dwellings in the UK.
• Note that the leaseholder protections only apply to leaseholds in England, and, if the cap is exceeded, i.e. a leaseholder owns more than 3 dwellings in the UK, then only the principal dwelling will have the benefit of the leaseholder protections.
• This has the effect that, for example, 2 people who own their principal home jointly, but their other properties individually might collectively own a total of 5 dwellings (2 each in addition to the principal) which qualify, but if they own all their properties jointly, they would only be permitted to have 3 dwellings which qualify and once that cap was exceeded, it is only the principal dwelling which gains the protections.

Overview of the leaseholder protections:

• The leaseholder protections set out in the Building Safety Act 2022 were designed to protect qualifying leaseholders in relevant buildings over 11 metres or 5 storeys by placing limits on the amount which can be legally charged to qualifying leaseholders to remediate non-cladding related defects through their service charge.
• The leaseholder protections apply to a qualifying lease. To be a qualifying lease a lease must meet the criteria set out in section 119 of the Act. In setting the criteria the intention was to protect leaseholders living in their own (principal) homes, as well as those who may have moved out and are living elsewhere, for example, because they have moved out of what was their principal home for example due to building safety issues, and those who owned up to 3 properties in total in the United Kingdom.
• Where a leaseholder owned more than 3 UK properties in total, a lease they own will not qualify for the protections save where the dwelling was their principal home on 14 February 2022, in a relevant building. This applies regardless of whether the leaseholder owns the properties jointly or on their own.

Geographical scope:

Leasehold protections in the BSA only apply to buildings in England, but we want to hear from anybody potentially affected irrespective of where they live.  

Body/bodies responsible for the call for evidence:

Department for Levelling Up, Housing and Communities.

Duration:

This call for evidence will run from Thursday 21 March 2024 to Sunday 7 April 2024.

Enquiries:

For any enquiries about the call for evidence please contact jointownershipcfe@levellingup.gov.uk. Members of the leaseholder protections team will monitor the inbox above and endeavour to reply to any questions as quickly as possible.   

How to respond:

You may respond by completing an online survey.

Alternatively you can email your response to the questions in this call for evidence to jointownershipcfe@levellingup.gov.uk.

When responding in writing, please make it clear which questions you are responding to.

Written responses should be sent to:

Leaseholder Protections Team
Department for Levelling Up, Housing & Communities
Fry Building, Third Floor
2 Marsham Street
London, SW1P

When you reply it would be very useful if you confirm whether you are replying as an individual or submitting an official response on behalf of an organisation and include:

• your name
• your position (if applicable)
• the name of organisation (if applicable)
• an address (including postcode)
• an email address
• a contact telephone number

About you

We will only use your personal information to contact you, should we require further clarification on a point or comment made during this engagement. We will not share your contact details or individual responses with third parties outside of the department, save for with Citizen Space under contract, in order to collect the data. The contract will ensure that this data is shared in strict accordance with data protection legislation. Your data will be collated with all the data we receive in response to this Call for Evidence, and used to evolve government policy in relation to those who own qualifying leases jointly.

1. What is your name?

2. What is your email address?

3. Are you responding as a leaseholder or landlord?

• Leaseholder
• Landlord
• If you are not a leaseholder or a landlord, please answer only questions 8 and 9

4. Have you, as a leaseholder or a landlord, been affected by the current joint ownership provisions as set out in the Building Safety Act 2022? If so, please explain how.

5. If the joint ownership provisions were kept the same (that is so that the protections apply where any leaseholder owns, or has a joint or partial interest in no more than 2 additional dwellings, in addition to the lease in question) , would this affect you? If so, how?

6. If the joint ownership provisions were changed (for example, to allow joint owners to own up to 4 dwellings, in addition to the lease in question in the UK, which could benefit from the protections), would this affect you? If so, how?

7. If the joint ownership provisions were reduced (for example, to allow joint owners to only own one dwelling, in addition to the lease in question to benefit from the protections), would this affect you? If so, how?

8. Do you have any additional comments on these proposals?

9. Applying the Public Sector Equality Duty: If the number of qualifying leases is increased, or decreased, for those who own the lease jointly, do you anticipate that this will have any positive or negative impacts related to protected characteristics under the Equality Act? Please answer to the best of your knowledge, noting the following explanatory information which will help you to assess the nature of protected characteristics and the public sector equality duty.

The  Public sector equality duty (s.149 of the Equality Act 2010) requires public authorities, in carrying out their functions, to have due regard to the need to achieve the objectives set out under s149 of the Equality Act 2010 to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it

The characteristics that are protected in relation to the public sector equality duty are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

About this call for evidence

This call for evidence document and call for evidence process have been planned to adhere to the consultation principles issued by the Cabinet Office.

Representative groups are asked to give a summary of the people and organisations they represent, and where relevant who else they have consulted in reaching their conclusions when they respond.

Information provided in response to this call for evidence may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Environmental Information Regulations 2004 and UK data protection legislation.  In certain circumstances this may therefore include personal data when required by law.

If you want the information that you provide to be treated as confidential, please be aware that, as a public authority, the department is bound by the information access regimes and may therefore be obliged to disclose all or some of the information you provide. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the department.

The Department for Levelling Up, Housing and Communities will at all times process your personal data in accordance with UK data protection legislation and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties. A full privacy notice is included below.

Individual responses will not be acknowledged unless specifically requested.

Your opinions are valuable to us. Thank you for taking the time to read this document and respond.

Are you satisfied that this call for evidence has followed the consultation principles?  If not or you have any other observations about how we can improve the process please contact us via the complaints procedure.

Personal data

The following is to explain your rights and give you the information you are entitled to under UK data protection legislation.

Note that this section only refers to personal data (your name, contact details and any other information that relates to you or another identified or identifiable individual personally) not the content otherwise of your response to the call for evidence.

The identity of the data controller and contact details of our Data Protection Officer

The Department for Levelling Up, Housing and Communities (DLUHC) is the data controller. The Data Protection Officer can be contacted at dataprotection@levellingup.gov.uk or by writing to the following address:

Data Protection Officer
Department for Levelling Up, Housing and Communities
Fry Building
2 Marsham Street
London
SW1P 4DF

Why we are collecting your personal data

Your personal data is being collected as an essential part of the call for evidence process, for statistical purposes and to inform our policy development. We may also use it to contact you about your response and/or related matters.

We will collect your IP address if you complete a call for evidence online. We may use this to ensure that each person only completes a survey once. We will not use this data for any other purpose.

Sensitive types of personal data

Please do not share special category personal data or criminal offence data if we have not asked for this unless absolutely necessary for the purposes of your call for evidence response. By ‘special category personal data’, we mean information about a living individual’s:

• race
• ethnic origin
• political opinions
• religious or philosophical beliefs
• trade union membership
• genetics
• biometrics
• health (including disability-related information)
• sex life; or
• sexual orientation.

By ‘criminal offence data’, we mean information relating to a living individual’s criminal convictions or offences or related security measures.

Our legal basis for processing your personal data

The collection of your personal data is lawful under article 6(1)(e) of the UK General Data Protection Regulation as it is necessary for the performance by DLUHC of a task in the public interest/in the exercise of official authority vested in the data controller. Section 8(d) of the Data Protection Act 2018 states that this will include processing of personal data that is necessary for the exercise of a function of the Crown, a Minister of the Crown or a government department i.e. in this case a consultation for the purposes of policy development.

Where necessary for the purposes of this call for evidence, our lawful basis for the processing of any special category personal data or ‘criminal offence’ data (terms explained under ‘Sensitive Types of Data’) which you submit in response to this call for evidence is as follows. The relevant lawful basis for the processing of special category personal data is Article 9(2)(g) UK GDPR (‘substantial public interest’), and Schedule 1 paragraph 6 of the Data Protection Act 2018 (‘statutory etc and government purposes’). The relevant lawful basis in relation to personal data relating to criminal convictions and offences data is likewise provided by Schedule 1 paragraph 6 of the Data Protection Act 2018.

With whom we will be sharing your personal data

DLUHC may appoint a ‘data processor’, acting on behalf of the department and under our instruction, to help analyse the responses to this call for evidence. Where we do we will ensure that the processing of your personal data remains in strict accordance with the requirements of the data protection legislation.

We will share your personal data with a third party, Citizen Space, under contract, as a means of collecting the data. The contract will ensure that the data sharing is in strict accordance with the requirements of data protection legislation.

For how long we will keep your personal data, or criteria used to determine the retention period

Your personal data will be held for 2 years from the closure of the call for evidence, unless we identify that its continued retention is unnecessary before that point.

Your rights, e.g. access, rectification, restriction, objection

The data we are collecting is your personal data, and you have considerable say over what happens to it. You have the right:

a. to see what data we have about you

b. to ask us to stop using your data, although we may continue to hold it on record

c. to ask to have your data corrected if it is incorrect or incomplete

d. to object to our use of your personal data in certain circumstances

e. to lodge a complaint with the independent Information Commissioner (ICO) if you think we are not handling your data fairly or in accordance with the law. You can contact the ICO at https://ico.org.uk/, or telephone 0303 123 1113.

Please contact us at the following address if you wish to exercise the rights listed above, except the right to lodge a complaint with the ICO: dataprotection@levellingup.gov.uk or

Knowledge and Information Access Team
Department for Levelling Up, Housing and Communities
Fry Building
2 Marsham Street
London
SW1P 4DF

Your personal data will not be sent overseas

Your personal data will not be used for any automated decision making

Your personal data will be stored in a secure government IT system

We use a third-party system, Citizen Space, to collect call for evidence responses. In the first instance your personal data will be stored on their secure UK-based server. Your personal data will be transferred to our secure government IT system as soon as possible, and it will be stored there for a maximum of 2 years before it is deleted.