Right of First Refusal

Right of First Refusal

The Leasehold Enfranchisement Law Team at Meaby&Co aims to empower you to deal with the process with confidence and dignity.

We are able to offer the best possible advice and guidance for both tenants and landlords when it comes to The Right of First Refusal.

The First Right of Refusal gives tenants the opportunity to buy the freehold of the property before it is sold to a third party by the landlord. It also allows tenants to acquire other interests in a property such as a headlease or lease over common parts.

For many tenants being given the chance to buy the freehold creates uncertainty for them but it can also present excellent opportunities.

Similarly, for landlords, they have to be careful about how to proceed to ensure they do not accidentally transgress the legislation.

Having practised property law for decades, Meaby&Co is expertly placed to help you manage the situation whether you are a tenant or a landlord.

About The Right of First Refusal.

You may have received a notice from your landlord headed with the words “Section 5 Notice” or you may be a landlord wanting to dispose of your freehold or other interests in your property.

Serving a section 5 notice is an obligation of a landlord under the Landlord and Tenant Act 1987 (‘the 1987 Act’). The notice triggers a period in which tenants can accept a landlord’s offer and restricts a landlord in further dealing with the freehold.

The tenant, premises and flat must qualify.

Generally, a tenant is a qualifying tenant if they are a tenant of a flat on a tenancy (but business, employee and assured tenancies do not apply and a qualifying tenant of three or more flats will be excluded).

The premises should qualify if:

  • they consist of the whole or part of a building (the 1987 Act does not define ‘building’ and this is the subject of ongoing case law); and
  • they contain two or more flats held by qualifying tenants; and
  • the total number of flats held by those tenants must exceed 50% of the total number of flats contained in the premises.

Lastly, a flat is defined as a separate set of premises which:

  • forms part of the building; and
  • is divided horizontally from some other part of that building; and
  • is constructed or adapted for use for the purposes of a dwelling.

It is important to note that if the internal floor area of the non-residential parts exceeds 50% of the whole premises (excluding the common parts) then the premises will be excluded from the right of first refusal.

Depending on the type of section 5 notice served, landlords may be required to stipulate the premium for the freehold. Tenants will not necessarily have to pay their landlord’s legal and survey costs but we find that this is often a condition of the section 5 notice. It is worth bearing in mind that the tenants’ right is a right of pre-emption. The right arises from a landlord’s proposal to dispose of property rather than a right to buy at the tenants’ option. It follows directly from this that, until a landlord has entered into a binding contract with the tenants, the landlord cannot be compelled to proceed with the disposal.

Please note that the creation or transfer of an estate or interest in premises or their common parts generally will necessitate serving a section 5 notice and so it is not just limited to the sale of freeholds.

If you have received a section 5 notice, please contact us without delay. The 1987 Act has a prescribed timeframe and time is very much of the essence.

Chris Sarsfield

Chris Sarsfield

Head of Leasehold Enfranchisement

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