What is a defective lease and what does it mean?

As a leaseholder, you only own the property for a set period and do not own the building itself or the land it sits on. 

The person you’ll have a lease with is the freeholder. They own the land but have little control over your leasehold day-to-day. Your relationship is outlined in a lease, which acts as a contract between you both.

The lease essentially lays out the responsibilities you both have. However, sometimes some of the responsibilities or terms can be deemed unfair or unclear. There may also be some elements of the lease that need to be changed because the requirements of lenders have changed since the lease was first granted.  In these situations, the lease may be defective.

The contract between the leaseholder and freeholder is a legally binding agreement, which must specify all the terms and conditions that apply throughout residency.

However, now and then, either you as the leaseholder, a new potential buyer, or even your conveyancer might look at those terms and think that something isn’t quite fair, practical, or clear.

There are a lot of reasons why a lease could be deemed defective, including:

• The length of time left on the lease
• Escalating ground rents
• No rights to get repairs or services done when needed
• Not having proper access to all areas of the property
• Confusion around who’s responsible for insurance
• The property plan in the lease doesn’t match the actual layout/facilities
• Restrictive rules around things like pets, noise levels, renovations etc.
• Service charges that seem excessive or unreasonable
• The freeholder trying to make you cover costs that you shouldn’t have to

The key is to remember that the lease is a legal agreement. So, if parts seem off or unfair to you, there are ways to clarify and potentially renegotiate those conditions.

You’ve found out there may be some potential issues with your lease agreement – but what now? Well, there are various routes to resolving these issues. 

When it comes to amending a defective lease, the good news is that you often don’t need to go through lengthy court battles. The approach you take rather depends on how complex the issue is and how willing your freeholder is to compromise.

Some options include: 

Deed of Variation: Basically, you’d negotiate the changes to the lease directly with the freeholder. Once you’ve agreed to the new terms, you both sign a legally binding deed laying out those variations to the original lease. This route tends to work well for smaller adjustments.

Surrender and re-grant: If more substantial amendments are needed, you’d simply terminate the current defective lease, and the freeholder would then grant you a new corrected lease agreement. A clean slate, so to speak.  Any change to a lease that varies the length of the term or the property's physical extent of the property will be deemed a surrender and regrant. 

Court application: In cases where the freeholder is digging their heels and refusing to budge on potentially unfair/unlawful clauses, you can apply to the court for a lease variation order. A judge would then review the disputed terms and can formally amend the lease if they agree conditions are unreasonable.

Before taking definitive action though, it’s crucial to first get expert advice on whether your case is valid. Once you have that, you can move forward with confidence in resolving those lease issues.

As a leaseholder, having a defective lease agreement can seriously undermine your rights and put you in a vulnerable position. Not only that, but those flaws can also make your property much harder to sell down the line. That’s why it’s so crucial to take prompt action in amending any defects present in your lease.

A defective lease can contain all sorts of issues – ambiguous language that’s open to multiple interpretations, illegal clauses that conflict with housing legislation, or just flat-out missing essential terms that should be included.

By taking steps to resolve these issues, you can gain clarity on your insights under an accurate, enforceable contract. A corrected lease protects your interests, ensures it aligns with all the applicable leasehold laws, and provides a solid legal foundation to refer to if any conflicts arise during your tenancy.

As a leaseholder, being proactive about reviewing your agreement and seeking expert legal advice is crucial. Don’t let a flawed, defective lease leave you vulnerable.

You could also look at taking out insurance for a defective lease. Particularly where there are issues with building insurance and if there are missing plans etc.