Qualifying date, qualifying lease and extent
This guidance clarifies the extent (or location) to which the leaseholder protections apply. It also explains what is meant by qualifying date and qualifying lease.
Applies to England
Summary
1. This guidance clarifies the extent (or location) to which the leaseholder protections apply. It also explains what is meant by qualifying date and qualifying lease.
What the legislation means
2. A qualifying lease is a lease to which the leaseholder protections apply.
3. A lease is qualifying if it meets all of the following criteria:
a. it is a long lease (more than 21 years in length) of a single dwelling within a building of above 11 metres or at least five storeys
b. you are responsible for paying a service charge
c. the lease was granted before the 14 February 2022
d. on 14 February 2022:
- the dwelling was your only or main home, meaning it was the home where you spent most of your time, or
- you did not own more than 3 dwellings in the United Kingdom in total - please note, dwellings outside of England will not be covered by the leaseholder protections.
4. The leaseholder protections apply to leaseholders in a relevant building in England only. The leaseholder protections do not apply to leasehold properties located in Wales, Scotland or Northern Ireland.
5. The leaseholder and landlord tests apply from 14 February 2022 (“the qualifying date”). This is the date the draft leaseholder protections were first published, and this date has been chosen to ensure that the system cannot be gamed now the operation of the protections is known.
6. If a dwelling was let under two or more leases on 14 February 2022, a lease which is superior to any other lease is not a qualifying lease (a superior lease is the lease between the leaseholder’s building owner and the freeholder (although there may be one or more layers of leases in between). The definition of ‘building owner’ can be found in What are my building owner’s legal obligations?
7. The protections which apply to the property based on its status on 14 February 2022 are automatically transferred to future buyers of the lease. This means that if the property was eligible for the protections on 14 February 2022 and is sold subsequently, the buyer also benefits from those protections (and vice versa).
8. We have amended the Building Safety Act 2022 to ensure that the statutory protections for leaseholders continue where qualifying leases are extended, varied or replaced by an entirely new lease. This means that the statutory protections limiting or preventing remediation costs from being passed onto qualifying leaseholders will continue to apply as if the new lease were a qualifying lease.
9. The amendment is retrospective, so that it applies to leases extended, varied or replaced since 14 February 2022. This means that those leaseholders who have, for example, extended their leases or are in the middle of the process, are covered by the protections.
10. This amendment came into effect on 26 December, 2 months after Royal Assent of the Levelling Up and Regeneration Act 2023.
11. The relevant provision can be found in section 243 of the Levelling Up and Regeneration Act 2023.
How will this affect you, the leaseholder?
12. If you own a lease within a relevant building and your lease meets the qualifying criteria (as outlined above), you qualify for the leaseholder protections.
13. You should review the Mandatory information required from leaseholders and building owners to determine what you must provide to demonstrate your lease’s qualifying status.
14. For more information about the certificate and evidence your building owner will be required to provide to demonstrate whether they can pass on costs to qualifying leaseholders, please see Mandatory information required from leaseholders and building owners.
Examples
Example 1:
- You own a long lease which has been granted before 14 February 2022 within a relevant building in England.
- This is your only or main home.
- You qualify for the leaseholder protections.
Example 2:
- You own 4 flats in England within relevant buildings.
- You do not own any other property. You live (and lived on 14 February 2022) in one of these flats.
- Only the flat lease you live in qualifies for the leaseholder protections.
- The other flat leases do not qualify as you own more than three properties in the United Kingdom.
Example 3:
- You own 2 flats within relevant buildings in England and 2 houses in Wales. You live (and lived on 14 February 2022) in one of the flats.
- Only the flat lease you live in qualifies for the leaseholder protections.
- The other flat lease does not qualify for the leaseholder protections as you own more than three properties in the United Kingdom.
Example 4:
- You own 2 flats within relevant buildings in England and 2 houses in Wales.
- You live in one of the houses in Wales.
- Neither flat lease qualifies for the leaseholder protections, as you own more than 3 properties in the United Kingdom in total, and neither of the flats was your main home on 14 February 2022.
Example 5:
- You own 2 flats within relevant buildings in England and 1 flat in Scotland.
- You live in a flat in France.
- Both flat leases in England qualify for the leaseholder protections as you do not own more than three properties in the United Kingdom.
Example 6:
- You own a flat within a relevant building which was your main home on 14 February 2022.
- Your flat lease qualifies for the leaseholder protections. You sell your flat to a new owner.
- The leaseholder protections automatically transfer to the future buyer.
- It does not matter whether the new buyer lives in the property or how many other properties they own, as the lease’s status was determined on 14 February 2022.
Example 7:
- You own a flat within a relevant building which was not your main home on 14 February 2022, and you own more than 3 properties in total.
- Your lease does not qualify for the leaseholder protections.
- You sell your flat.
- Although the future buyer is intending for the flat to be their only and main home, the lease remains non-qualifying as the lease’s qualifying status was determined on 14 February 2022.
Example 8:
- You jointly own (and owned on 14 February 2022) 3 flats in England within relevant buildings. You do not own any other property.
- You are considered to own 3 properties for the purpose of the protections.
- All three flat leases qualify for the leaseholder protections.
Example 9:
- You own (and owned on 14 February 2022) 3 flats in England within relevant buildings, one of which is furnished holiday rental.
- You also own one commercial premise.
- You are considered to own 3 properties for the purpose of the protections.
- All 3 flat leases qualify for the leaseholder protections.
Last updated 16 November 2023 + show all updates
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Guidance updated to announce changes to the Building Safety Act 2022 on lease extensions/variations.
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Updated to provide guidance on lease extensions/variations.
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Updated to provide guidance on lease extensions.
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First published.