UK Government to Crackdown on Unfair Leasehold Practices

Following growing concerns amongst property owners and leaseholders regarding alleged mis-selling by property developers, mounting pressure has required that a government review be undertaken to clarify and address the issues.

Recently, the reported profits of many UK house builders have increased significantly which has served to further fuel the debate. The resulting financial burden on taxpayers who are footing the bill through the government’s Help to Buy scheme has exacerbated the problem with disgruntled leaseholders voicing their frustration at the unfairness of the fuedal leasehold system.

There are no signs reported of any slowdown affecting this area of the property market which is focused on mainly leasehold blocks of flats concentrated in London and the South East UK. It would appear that not even Brexit can dampen property purchasers’ enthusiasm to take advantage of the ever popular Help to Buy government scheme.

But leaseholders who have bought in to these leasehold arrangements are unhappy. They perceive they have been mis-sold their properties which they ultimately do not own under the leasehold system. Some say they are on the receiving end of what they believe are unfair ground rent arrangements with steep increases scheduled in the lease well above the accepted norm. Houses are reportedly being sold by some developers as leasehold and not freehold for no reason other than commercial gain with the income stream being sold on to benefit financial investors with no regard to the homeowners.

On the back of this growing discontent, the Government undertook a consultation in 2017 into tackling unfair leasehold practices in the UK property market. This resulted in the Housing, Communities and Local Government Committee (HCLG) launching an inquiry into the Government’s programme for leasehold reform in July 2018.The HCLG report on leasehold reform published on 19 March 2019 includes important and wide reaching recommendations affecting the management of blocks of flats and other leasehold property which are briefly summarised below. Significant changes are identified impacting block management agents, conveyancing solicitors, landlords, developers and estate agents throughout England and Wales including as follows.

Government policy should ensure that Commonhold becomes the primary means of ownership for flats in England and Wales.

The start of the property sales process should require that developers or estate agents produce a key features document in a standard form.

A recommendation to introduce new consultation procedures for privately owned properties to protect leaseholders affected by high value major works with a £10,000 threshold per leaseholder. Works exceeding this value should require the consent of a majority of leaseholders in the property before proceeding.

Mis-selling in the leasehold sector should be subject to investigation by The Competition and Markets Authority which should recommend appropriate compensation measures.

Ground rents on new leases should be Peppercorn or nil value.

The HCLG Committee has reached a conclusion that the government would be legally able to introduce new legislation which would effectively remove onerous ground rents from existing leases. Further restrictions could also be imposed limiting existing ground rents to 0.1% of the present value of a property. Ground rent should not exceed £250 per annum for any property.

Debt Vs. Equity

As a hard money lender, I get calls daily from real estate investors wanting help funding their next project. Many of them are so focused on one way to do it, they sometimes miss opportunities to make money. It was a few months ago I spoke with an investor that wanted us to fund a deal in Denver. It was a fix and flip and the deal had merit. It would have likely produced a sizable profit. Unfortunately, we may never know. He lost the deal for lack of funding. What happened? He did not understand the different ways to fund real estate deals and was not willing to listen to advice. The fact is that sometimes an investor needs to get creative which could lead to less profit. But, in this case, a piece of something would have been a lot better than all of nothing.

Debt: Debt is the simplest to understand and the least creative. Debt is just a loan. There are multiple types of loans; bank loans, conventional loans, government loans, private money loans, hard money loans, and several others. Debt generally takes no ownership stake in your deal and you won’t need to give up control. In real estate, loans are typically secured by the project, but sometimes you can use other properties or assets as additional collateral. That is referred to as cross collateralization or blanket financing and is about as creative as it comes with debt. Lenders typically want a set rate of return, so when you borrower money you will likely pay fees and a set interest rate. You will also probably have a set amount of time to return the money. Debt is the cheaper of the two options, but is riskier for two reasons:

Debt holders get paid back first. If there is a problem with the project, the lender is the last one to ever take a loss. In fact, it is common in a loss situation that the owners take the loss and the lenders get paid back in full, including all interest and fees. This is why many savvy investors choose to lend money or work with companies that do.
Most lenders will also require monthly payments which creates pressure for a project.

Qualifying for debt is typically a bit more challenging than equity. Most banks and conventional lenders base their loan decision on cash flow. That creates a problem with fix and flips because fix and flips have no monthly cash flow. In fact, they have no positive cash flow until the project is done and sold. Other qualifying factors are important too, like credit, reserves, and the collateral. To some lenders, like commercial banks, your credibility is also a factor. Creditability is the lender’s belief you can handle the project, so they will look at experience and possibly want to interview you. Except for a fix and flip or new construction, no lender I know will make a loan on a property with negative cash flow unless an individual guarantor has personal cash flow that will support the payments. Cash flow is king, which can sometimes make debt a tricky way to go.

Equity: Equity is a much safer strategy and it creates a lot more options. Equity participants take a piece of the deal in exchange for use of their money. That is a simple way to look at it, but with equity you can get very creative. I have seen partnership deals with a straight split, a preferred or promised return with or without a piece of the deal, control or no control, long term deals and short-term deals; and I have seen variation of all of these. The sky is the limit when it comes to equity funding. Real estate investors don’t typically like equity because it can get very expensive. Although it can be costly, here are some of the benefits:

More equity makes a deal stronger and easier to finance.
May not need to make monthly payments.
There is a ton of flexibility.
Spreads the risk.

To qualify for equity funding, you just need to be able to sell the deal and to sell yourself. There is rarely a credit check, income is not an issue, and cash reserves won’t cause you grief (heck this is the most common reason investors go the equity route).

What I see a lot of is a combination of debt and equity. Remember my client that lost a sizable payday because he zeroed in on debt? If he opened his mind to equity, he could have brought in a partner to help meet our requirements and then we would have funded the deal. He probably could have brought in a partner to inject a little capital and sign on the loan for less than 30% of his deal. Yes, it is expensive, but it would have gotten the deal done. He probably would have still made $30,000, but instead he made nothing.

Debt is cheap, even hard money is cheaper than a partner on good deals. Sometimes I hear a potential client complain that we or other hard money lenders charge too much. They would prefer to bring in a partner to fund the deal. If you do the math, you will likely see that hard money is cheaper than a partner and you don’t need a lot of money down to get the deal done. That assumes you are doing profitable deals of course.

Equity is safer; however, you will probably pay a little more for it. Obviously, there are advantages and disadvantages to both, and each deal may require a different strategy to finance it. It is all math, so I would encourage you to look at the numbers and be open to both debt and equity or a combination of both. Everyone at Pine Financial are experts in real estate finance. It is common for us all to put our heads together in our office to help our clients succeed. The next time you are questioning the best way to fund a deal, give us a call and let us be your second set of eyes. We only succeed when our clients do!

When To Sell A House

Taking the idea of trying to time the market out of the equation, how do you know when the best time is to sell a house with equity? I get this question from even the savviest investors all the time. I was just reading some articles from an experienced investor in the Denver area. I know this investor well and have a high level of respect for him. He mentioned something that got me thinking, I don’t know for sure if I agree or disagree, but it is an interesting topic. He mentioned that he has a condo in another part of the country that has a little over $200,000 in equity. He plans to sell the condo this year and leverage that into two or three properties in Denver, where he lives. His arguments are:

The $200,000 in equity is not growing. In fact, he is losing money on that equity because of inflation. Investing that equity into more properties will help him reach his financial goals much faster.
He does not want the hassle of owning out of state properties. He wants to invest where he lives.

There is no argument from me on his second motive to sell. I own properties in several states and can tell you that my best, least stressful investments are all within 45 minutes of my office. My out of state properties perform okay when they are rented, but they are hard to manage without jumping on a plane, even with a property manager. Unfortunately, you just need to show up from time to time to get things done.

It’s his first argument that made me stop and think, although I do agree with the basic concept of not holding equity in real estate. I believe this for a few reasons. First, I agree with him that equity in property is producing a zero percent return, and if your goal is to grow financially, you are slowing it down by not leveraging. No one can have a good argument against that, but there are a lot of investors that want to own free and clear property. One advantage of a free and clear property is that you can have a higher cash flow, meaning fewer properties to reach the same monthly income goal. There is also something very comforting about owning property without debt. There won’t be a creditor or lender that can take it from you if things get financially challenging. From that prospective, it is very safe to own debt free real estate.

With that said, another reason I don’t like a lot of equity in houses is that you become a target to lawsuits. I am not an attorney, but I have friends and colleagues that are, and they agree with me on the risk here. Many personal injury attorneys get paid on what is called a contingent fee. This just means that their fee is contingent on them being able to win or settle a case and collect. A fee might be 40%-50% of the collected amount. Knowing this is true, how many attorneys would take a case where the defense appeared to be broke? You cannot collect from a dry well. On the flip side, if you got in a car accident, even if it was not your fault, and the other party wanted to sue, the opposing counsel would first look into your assets. There is no asset that is more transparent than real estate. They can look and see what properties you own and how much debt you have. Even an LLC that owns one house could be at risk if there was a slip and fall on the property. If the asset was leveraged, it would at least appear as if there was not much in the way of assets to pursue. Obviously, insurance is your first line of defense, but many lawsuits take place from mistakes that are not covered by insurance. Free and clear properties could create a target on your back.

So, you can see why I would agree with this investor’s position of selling his property to buy others with more leverage. There are a few augments that come to mind on reasons I might not agree.

First, we don’t have enough information to make that call. If I owned a property and I was considering selling, the first thing I would think about is what I would do with the money and how much is it going to cost me to get it. The returns would need to be high enough in the new investment to cover what I was making and pay me for the cost to do the transfer. For me, I might want to have the return sufficiently high enough that I can recoup all my costs in 18 to 24 months, and everything after that is additional profit above what I was getting with the old investment. I hear investors occasionally mention that they want to sell a property and cash in on their investment. Great! But what are you going to do with the money? If you don’t have a plan in place to reinvest proceeds, you will end up with a much lower return than just leaving the money where it is.

The other argument I would challenge this investor on, is that he can potentially keep the condo but still cash in on the equity. I love to use lines of credit on my rentals, this way there is a lien on title, so it appears to be encumbered, even if I am not using the money. It is also cheaper because I only pay interest if and when I use the funds. Setting this up in advance allows me to make quick decisions and take advantage of opportunities without keeping a bunch of cash in the bank. He might say that he can access more of the equity if he sells and can potentially buy more Denver real estate, which is true. With a line of credit, you would be limited to a percentage of the value, so you are limited on how much you can access.

It is important to point out that each situation is going to be different and based on the individual investor’s goals and needs. There are also many variables that go into this type of decision, and it can be tricky to navigate. It would be a good idea to have a trusted advisor look over your strategy to help you make the best financial decision for you. Please feel free to reach out to our office if you ever want to bounce an idea off us. Obviously, we would love to make a loan to you on your next project, but we are also opened to helping if you need a little hand holding.