Category Archives: Consumer Law

Arnold v Britton: Lord Neuberger abolishes common sense

Lord Neuberger, President of the UK Supreme Court, has issued one of his presidential proclamations – which is what he does when he wishes to change the law from his lofty but unaccountable position. Nominally the case he was considering, Arnold v Britton & Others, was a simple enough matter regarding service charges for a set of chalets on the Gower peninsula: clause 3(2) of the lease said the price for work such as mowing grass, maintaining roads through the site and sewers &c was to be £90 in 1974 rising by 10% a year; how should this be interpreted nearly 40 years on when the annual figure was more than £3,000 per chalet and rising? (Inflation would produced a figure of less than £800 by 2012.)

If the charge were truly to rise by 10% a year the lessor would be making a very substantial surplus over the term of the lease thanks to compounding (Year 2: £90 + £9 = £99; year 3: £99 + £9.90 = £108.90 and so on annually.) As Davis LJ in the Court of Appeal noted:

 “The figures before us are illustrative of the consequences. For a lease on a one year compounded uplift, the annual service charge payable was, for the year end 2012, some £3,060. At the same compounded annual rate of increase, the projected annual sum payable for service charges in the last year of the term stands to be some £1,025,004: this for modest holiday chalets, the use of which is restricted to half of each year.”

That’s a million pounds per chalet. There were 25 involved in the litigation but 91 in total, some with a less onerous system of payment for services. The outcomes would vary depending on when the leases were issued. Nevertheless, if the clause in the lease were allowed to stand, the lessors would have pulled in hundreds of millions in pure profit over the 99 years of the lease. This on a term of the lease which, it is axiomatic, should not be profit-making since it is merely for the lessor to recover expenditure on ongoing maintenance of the common facilities (see Lease – though holiday chalet leases aren’t covered by legislation for homes).  Continue reading

Advertisements

2 Comments

Filed under Analysis, Business, Business law, Comment, Consumer Law, Financial Law, Law, Legal, UK Law

Gifted deposit indemnity insurance: a costly and unnecessary burden on homebuyers

House conveyancers are adding one more bit of indemnity insurance to some house purchasers’ bills  – and it looks as if “gifted deposit indemnity insurance” is of no use except to the insurers who sell it.

Add it to the list of various types of indemnity insurance for chancel repairs; for failure of a previous owner to gain planning permission; for a previous owner breaching restrictive covenants; indemnity for various other legal costs.  Some of these products are of dubious value – but a new study suggests gifted deposit indemnity insurance – used (at the homebuyer’s expense) to protect banks if someone giving a gift towards a home purchase goes bankrupt – has no real function at all.

The issue is increasingly significant as more and more parents are giving financial help for their children’s home purchases.  The insurance is paid for by the home buyer, intended to protect the mortgage provider, but in reality would only kick in if the conveyancers weren’t doing their job properly or the bank itself was acting in bad faith. Arguably that means it actually has no real purpose at all.

The principle behind the insurance is that it protects the mortgagee’s (ie bank lending the money) title in the property if the donor of a gift or informal family loan goes bankrupt and creditors make a claim to the money as part of the donor’s assets. Buyers are said to feel pressured into buying the insurance, costing up to £300, even though they don’t understand it.  

But is it strictly necessary? There is strong evidence that conveyancers are the ones who don’t understand the law and that the insurance is for the most part unnecessary – even when “bank of mum and dad” does go belly-up.

Continue reading

Leave a comment

Filed under Analysis, Business, Business law, Comment, Consumer Law, Financial Law, Law, Legal, UK Law