Lexsure e-ROT

Ground Rent · Report on Title scenario

The lender wants indemnity insurance for the ground rent — what does it cover?

It covers the lender, not you. A forfeiture of lease (Housing Act repossession) policy of this kind is written for the mortgagee: it responds if the landlord attempts to recover possession under a section 8 notice because of unpaid ground rent on a long lease the landlord treats as an assured tenancy. It does not reduce the ground rent, cure the defect in the lease, or protect your own equity. It makes the lender willing to lend on a title it would otherwise question.

From the e-ROT archive

This scenario is drawn from Report on Title material dealing with this specific circumstance.

Lexsure master Report on Title paragraph: Forfeiture Of Lease (Housing Act Repossession) - Lender Only Indemnity Insurance · See the wording

When the policy comes up at all

It comes up as the second answer, after the first one failed. The first answer to a ground rent over the statutory threshold is to vary the lease so that it is not. Where the seller’s solicitors have tried and the landlord will not agree — or will agree only on terms nobody will pay — the transaction needs another way through, and indemnity insurance is it.

That sequence matters, because a policy is a response to an unremedied defect rather than a cure for it. The lease is still a lease with a rent over the threshold. It will still be a lease with a rent over the threshold when you sell, and the question will arise again with the next buyer’s lender.

Who pays is a matter of negotiation. In the master wording the seller agreed to pay, which is common where the defect is one the seller has lived with. It is not guaranteed.

Already bought with a policy like this on the file?

If you were not told what the policy covered, or who it covered, that is worth establishing now rather than at the point of sale.

Find out what should have been explained → WhenIBought.com

What the policy actually responds to

The cover is narrow and specific: a mortgagee-only policy responding where the landlord attempts to issue a section 8 notice under the Housing Act 1988 because of outstanding ground rent due from the borrower under the long lease. The insured is the lender as defined in the policy.

So it is not a policy you claim on. If the landlord moves to forfeit and the worst happens, the lender’s loss is covered; your interest in the flat is a separate question that the policy was not written to answer. Reading the schedule to see who the insured is, rather than assuming, is the single most useful thing to do with the document.

The practical protection for you is not the policy at all — it is paying the ground rent when it is demanded, keeping the managing agent’s address current, and not letting a dispute about the rent turn into non-payment of it. The statutory trap needs three months’ rent to be more than three months late before it closes.

What it means when you come to sell

A policy of this kind usually runs with the title and can benefit successors, but that depends on its terms, and on whether the next buyer’s lender will accept it. Lenders differ about indemnity policies generally, and about this class in particular.

Keep the policy document with the deeds, along with the correspondence showing that a variation was sought and refused. The next conveyancer will want to establish quickly that the defect is known, insured and unchanged, rather than discovering it afresh.

If the ground rent is itself something you would rather be rid of, the statutory lease extension route remains open and substitutes a peppercorn rent for the whole new term. That removes the reason for the policy, which is a different proposition from insuring around it.

Why the lender asks for it, and what its acceptance means

The lender is protecting its security against an outcome it cannot monitor: a forfeiture triggered by arrears it will not hear about until the notice is served. A mortgagee-only policy puts that loss with an insurer and lets the loan proceed.

Acceptance of a policy is a lender-by-lender matter. Some set out acceptable policy terms, minimum cover and approved insurers in their instructions; some will not accept this class of policy at all, and will want the lease varied instead. Those requirements sit in the lender-specific part of the handbook rather than the common instructions.

Because the defect does not go away, the same question arises on every future sale and remortgage — against whatever the lender of the day requires. That is the long-run cost of insuring rather than varying, and it belongs in the decision.

Research lender requirements → Lexsure Lender Archive

From the e-ROT archive

Report on Title paragraph

Forfeiture Of Lease (Housing Act Repossession) - Lender Only Indemnity Insurance

Master precedent Lexsure e-ROTScope Mortgagee-only indemnity, ground rent forfeitureWord count 111Status Current master paragraph

The lease is defective in that in that there is potential for the landlord to repossess the property using a Section 8 Housing Act Notice due to outstanding ground rent under a long lease, as a result of the landlord interpreting the long lease as an Assured Tenancy or AST due to the amount of ground rent stipulated. It is likely that governmental reforms will prohibit repossession in these circumstances in the future but until such time as legislation is passed the risk remains. Even as things stand the risk of repossession is exceptionally low. That being said, this existing defect may affect mortgageability and therefore marketability in the future. …

Master precedent wording. This is current Lexsure Report on Title material, shown here in extract and reproduced exactly, including the repeated “in that in that”. Its statement about what future reforms are likely to do is the position recorded in the paragraph and is not a statement of the law today. It is professional precedent wording and is not advice about any particular property.

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