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My 12-page submission in response to the consultation included the following observations -

(1) Leases, both of flats and houses, have for many years facilitated the enforcement of positive covenants against landlord and tenant during the term of a lease. Any ban on granting new leases of houses must be accompanied by reform of the law on 'freehold' positive covenants.

(2) There is often an inverse relationship between the level of ground rent payable by a leaseholder and the open market value of his or her flat. Therefore, I strongly recommended that the government consults the Royal Institution of Chartered Surveyors (RICS) before legislating about ground rents. They are the valuation experts.

(3) There is the separate issue of how restricting levels of ground rents could affect the price tenants pay for lease extensions and enfranchisement. Surveyors who specialise in determining the price payable should be consulted on this point too.

(4) The government should ensure that any new legislation does not repeat the mistakes of the Rent Act 1977 caps on rents and restrictions on premiums.

(5) Obliging builders on the sale of new leases (of houses and flats) to provide prospective buyers with material information that might influence their buying decision, e.g. on the level of ground rent payable throughout the term, would be an effective way of introducing consumer law methods into such sales.

(6) Declassifying Certain Tenancies as Assured Tenancies

I agreed that the government should amend the Housing Act 1988 to ensure a leaseholder paying annual ground rent over £1,000 in London or over £250 in the rest of England is not classed as an assured tenant. However, these rent limits only apply to certain leases granted on or after 1 April 1990. Therefore, I submitted that this proposal needs to be modified so that all long leases granted on or after 15 January 1989 (i.e. the date on which the Housing Act 1988 came into force) should be declassified as assured tenancies.

I further agreed with the proposed benchmark of more than 21 years for determining whether a tenancy is a long lease.

It will not always be clear if a long lease is an assured tenancy, even if falls within the aforesaid ground rent limits. This is especially the case where the landlord is unaware if the tenant occupies the dwelling as his or her only or principal home (which is a precondition to being an assured tenant). It follows from this point that the government’s proposal (if modified as above) would end discrimination against owner-occupiers (who will tend to be assured tenants) and buy to let landlords (who by definition cannot be assured tenants).

I further submitted that the government should set a maximum term for a fixed assured shorthold tenancy, as opposed to an assured non-shorthold tenancy. There is currently no such term prescribed by the Housing Act 1988.