Droit anglais Copropriété/Commonhold

Commonhold and Leasehold Reform Act 2002

Part 1

Commonhold

Nature of commonhold

1.Commonhold land

(1)Land is commonhold land if:

(a)the freehold estate in the land is registered as a freehold estate in commonhold land,

(b)the land is specified in the memorandum of association of a commonhold association as the land in relation to which the association is to exercise functions, and

(c)a commonhold community statement makes provision for rights and duties of the commonhold association and unit-holders (whether or not the statement has come into force).

(2)In this Part a reference to a commonhold is a reference to land in relation to which a commonhold association exercises functions.

(3)In this Part—

“commonhold association” has the meaning given by section 34,

“commonhold community statement” has the meaning given by section 31,

“commonhold unit” has the meaning given by section 11,

“common parts” has the meaning given by section 25, and

“unit-holder” has the meaning given by sections 12 and 13.

(4)Sections 7 and 9 make provision for the vesting in the commonhold association of the fee simple in possession in the common parts of a commonhold.

Registration

2.Application

(1)The Registrar shall register a freehold estate in land as a freehold estate in commonhold land if—

(a)the registered freeholder of the land makes an application under this section, and

(b)no part of the land is already commonhold land.

(2)An application under this section must be accompanied by the documents listed in Schedule 1.

(3)A person is the registered freeholder of land for the purposes of this Part if—

(a)he is registered as the proprietor of a freehold estate in the land with absolute title, or

(b)he has applied, and the Registrar is satisfied that he is entitled, to be registered as mentioned in paragraph (a).

3Consent

(1)An application under section 2 may not be made in respect of a freehold estate in land without the consent of anyone who—

(a)is the registered proprietor of the freehold estate in the whole or part of the land,

(b)is the registered proprietor of a leasehold estate in the whole or part of the land granted for a term of more than than 21 years,

(c)is the registered proprietor of a charge over the whole or part of the land, or

(d)falls within any other class of person which may be prescribed.

(2)Regulations shall make provision about consent for the purposes of this section; in particular, the regulations may make provision—

(a)prescribing the form of consent;

(b)about the effect and duration of consent (including provision for consent to bind successors);

(c)about withdrawal of consent (including provision preventing withdrawal in specified circumstances);

(d)for consent given for the purpose of one application under section 2 to have effect for the purpose of another application;

(e)for consent to be deemed to have been given in specified circumstances;

(f)enabling a court to dispense with a requirement for consent in specified circumstances.

(3)An order under subsection (2)(f) dispensing with a requirement for consent—

(a)may be absolute or conditional, and

(b)may make such other provision as the court thinks appropriate.

4Land which may not be commonhold

Schedule 2 (which provides that an application under section 2 may not relate wholly or partly to land of certain kinds) shall have effect.

5Registered details

(1)The Registrar shall ensure that in respect of any commonhold land the following are kept in his custody and referred to in the register—

(a)the prescribed details of the commonhold association;

(b)the prescribed details of the registered freeholder of each commonhold unit;

(c)a copy of the commonhold community statement;

(d)a copy of the memorandum and articles of association of the commonhold association.

(2)The Registrar may arrange for a document or information to be kept in his custody and referred to in the register in respect of commonhold land if the document or information—

(a)is not mentioned in subsection (1), but

(b)is submitted to the Registrar in accordance with a provision made by or by virtue of this Part.

(3)

Subsection (1)(b) shall not apply during a transitional period within the meaning of section 8.

Registration in error

(1)This section applies where a freehold estate in land is registered as a freehold estate in commonhold land and—

(a)the application for registration was not made in accordance with section 2,

(b)the certificate under paragraph 7 of Schedule 1 was inaccurate, or

(c)the registration contravened a provision made by or by virtue of this Part.

(2)

The register may not be altered by the Registrar under Schedule 4 to the Land Registration Act 2002 (c. 9)(alteration of register).

(3)The court may grant a declaration that the freehold estate should not have been registered as a freehold estate in commonhold land.

(4)A declaration under subsection (3) may be granted only on the application of a person who claims to be adversely affected by the registration.

(5)On granting a declaration under subsection (3) the court may make any order which appears to it to be appropriate.

(6)An order under subsection (5) may, in particular—

(a)provide for the registration to be treated as valid for all purposes;

(b)provide for alteration of the register;

(c)provide for land to cease to be commonhold land;

(d)require a director or other specified officer of a commonhold association to take steps to alter or amend a document;

(e)require a director or other specified officer of a commonhold association to take specified steps;

(f)make an award of compensation (whether or not contingent upon the occurrence or non-occurrence of a specified event) to be paid by one specified person to another;

(g)apply, disapply or modify a provision of Schedule 8 to the Land Registration Act 2002 (c. 9)(indemnity).

Effect of registration

7Registration without unit-holders

(1)This section applies where—

(a)a freehold estate in land is registered as a freehold estate in commonhold land in pursuance of an application under section 2, and

(b)the application is not accompanied by a statement under section 9(1)(b).

(2)On registration—

(a)the applicant shall continue to be registered as the proprietor of the freehold estate in the commonhold land, and

(b)the rights and duties conferred and imposed by the commonhold community statement shall not come into force (subject to section 8(2)(b)).

(3)Where after registration a person other than the applicant becomes entitled to be registered as the proprietor of the freehold estate in one or more, but not all, of the commonhold units—

(a)the commonhold association shall be entitled to be registered as the proprietor of the freehold estate in the common parts,

(b)the Registrar shall register the commonhold association in accordance with paragraph (a)(without an application being made),

(c)the rights and duties conferred and imposed by the commonhold community statement shall come into force, and

(d)any lease of the whole or part of the commonhold land shall be extinguished by virtue of this section.

(4)For the purpose of subsection (3)(d) “lease” means a lease which—

(a)is granted for any term, and

(b)is granted before the commonhold association becomes entitled to be registered as the proprietor of the freehold estate in the common parts.

Transitional period

(1)In this Part “transitional period” means the period between registration of the freehold estate in land as a freehold estate in commonhold land and the event mentioned in section 7(3).

(2)Regulations may provide that during a transitional period a relevant provision—

(a)shall not have effect, or

(b)shall have effect with specified modifications.

(3)In subsection (2) “relevant provision” means a provision made—

(a)by or by virtue of this Part,

(b)by a commonhold community statement, or

(c)by the memorandum or articles of the commonhold association.

(4)The Registrar shall arrange for the freehold estate in land to cease to be registered as a freehold estate in commonhold land if the registered proprietor makes an application to the Registrar under this subsection during the transitional period.

(5)The provisions about consent made by or under sections 2 and 3 and Schedule 1 shall apply in relation to an application under subsection (4) as they apply in relation to an application under section 2.

(6)A reference in this Part to a commonhold association exercising functions in relation to commonhold land includes a reference to a case where a commonhold association would exercise functions in relation to commonhold land but for the fact that the time in question falls in a transitional period.

9Registration with unit-holders

(1)This section applies in relation to a freehold estate in commonhold land if—

(a)it is registered as a freehold estate in commonhold land in pursuance of an application under section 2, and

(b)the application is accompanied by a statement by the applicant requesting that this section should apply.

(2)A statement under subsection (1)(b) must include a list of the commonhold units giving in relation to each one the prescribed details of the proposed initial unit-holder or joint unit-holders.

(3)On registration—

(a)the commonhold association shall be entitled to be registered as the proprietor of the freehold estate in the common parts,

(b)a person specified by virtue of subsection (2) as the initial unit-holder of a commonhold unit shall be entitled to be registered as the proprietor of the freehold estate in the unit,

(c)a person specified by virtue of subsection (2) as an initial joint unit-holder of a commonhold unit shall be entitled to be registered as one of the proprietors of the freehold estate in the unit,

(d)the Registrar shall make entries in the register to reflect paragraphs (a) to (c)(without applications being made),

(e)the rights and duties conferred and imposed by the commonhold community statement shall come into force, and

(f)any lease of the whole or part of the commonhold land shall be extinguished by virtue of this section.

(4)For the purpose of subsection (3)(f) “lease” means a lease which—

(a)is granted for any term, and

(b)is granted before the commonhold association becomes entitled to be registered as the proprietor of the freehold estate in the common parts.

10Extinguished lease: liability

(1)This section applies where—

(a)a lease is extinguished by virtue of section 7(3)(d) or 9(3)(f), and

(b)the consent of the holder of that lease was not among the consents required by section 3 in respect of the application under section 2 for the land to become commonhold land.

(2)If the holder of a lease superior to the extinguished lease gave consent under section 3, he shall be liable for loss suffered by the holder of the extinguished lease.

(3)If the holders of a number of leases would be liable under subsection (2), liability shall attach only to the person whose lease was most proximate to the extinguished lease.

(4)If no person is liable under subsection (2), the person who gave consent under section 3 as the holder of the freehold estate out of which the extinguished lease was granted shall be liable for loss suffered by the holder of the extinguished lease.

Commonhold unit

11Definition

(1)In this Part “commonhold unit” means a commonhold unit specified in a commonhold community statement in accordance with this section.

(2)A commonhold community statement must—

(a)specify at least two parcels of land as commonhold units, and

(b)define the extent of each commonhold unit.

(3)In defining the extent of a commonhold unit a commonhold community statement—

(a)must refer to a plan which is included in the statement and which complies with prescribed requirements,

(b)may refer to an area subject to the exclusion of specified structures, fittings, apparatus or appurtenances within the area,

(c)may exclude the structures which delineate an area referred to, and

(d)may refer to two or more areas (whether or not contiguous).

(4)A commonhold unit need not contain all or any part of a building.

12Unit-holder

A person is the unit-holder of a commonhold unit if he is entitled to be registered as the proprietor of the freehold estate in the unit (whether or not he is registered).

13Joint unit-holders

(1)Two or more persons are joint unit-holders of a commonhold unit if they are entitled to be registered as proprietors of the freehold estate in the unit (whether or not they are registered).

(2)In the application of the following provisions to a unit with joint unit-holders a reference to a unit-holder is a reference to the joint unit-holders together—

(a)section 14(3),

(b)section 15(1) and (3),

(c)section 19(2) and (3),

(d)section 20(1),

(e)section 23(1),

(f)section 35(1)(b),

(g)section 38(1),

(h)section 39(2), and

(i)section 47(2).

(3)In the application of the following provisions to a unit with joint unit-holders a reference to a unit-holder includes a reference to each joint unit-holder and to the joint unit-holders together—

(a)section 1(1)(c),

(b)section 16,

(c)section 31(1)(b), (3)(b), (5)(j) and (7),

(d)section 32(4)(a) and (c),

(e)section 35(1)(a), (2) and (3),

(f)section 37(2),

(g)section 40(1), and

(h)section 58(3)(a).

(4)Regulations under this Part which refer to a unit-holder shall make provision for the construction of the reference in the case of joint unit-holders.

(5)Regulations may amend subsection (2) or (3).

(6)Regulations may make provision for the construction in the case of joint unit-holders of a reference to a unit-holder in—

(a)an enactment,

(b)a commonhold community statement,

(c)the memorandum or articles of association of a commonhold association, or

(d)another document.

Use and maintenance

(1)A commonhold community statement must make provision regulating the use of commonhold units.

(2)A commonhold community statement must make provision imposing duties in respect of the insurance, repair and maintenance of each commonhold unit.

(3)A duty under subsection (2) may be imposed on the commonhold association or the unit-holder.

Transfer

(1)

In this Part a reference to the transfer of a commonhold unit is a reference to the transfer of a unit-holder’s freehold estate in a unit to another person—

(a)whether or not for consideration,

(b)whether or not subject to any reservation or other terms, and

(c)whether or not by operation of law.

(2)A commonhold community statement may not prevent or restrict the transfer of a commonhold unit.

(3)On the transfer of a commonhold unit the new unit-holder shall notify the commonhold association of the transfer.

(4)Regulations may—

(a)prescribe the form and manner of notice under subsection (3);

(b)prescribe the time within which notice is to be given;

(c)make provision (including provision requiring the payment of money) about the effect of failure to give notice.

16 Transfer: effect

(1)A right or duty conferred or imposed—

(a)by a commonhold community statement, or

(b)in accordance with section 20,

shall affect a new unit-holder in the same way as it affected the former unit-holder.

(2) A former unit-holder shall not incur a liability or acquire a right—

(a) under or by virtue of the commonhold community statement, or

(b)by virtue of anything done in accordance with section 20.

(3)Subsection (2)—

(a)shall not be capable of being disapplied or varied by agreement, and

(b)is without prejudice to any liability or right incurred or acquired before a transfer takes effect.

(4)In this section—

“former unit-holder” means a person from whom a commonhold unit has been transferred (whether or not he has ceased to be the registered proprietor), and

“new unit-holder” means a person to whom a commonhold unit is transferred (whether or not he has yet become the registered proprietor).

17Leasing: residential

(1)It shall not be possible to create a term of years absolute in a residential commonhold unit unless the term satisfies prescribed conditions.

(2)The conditions may relate to—

(a)length;

(b)the circumstances in which the term is granted;

(c)any other matter.

(3)Subject to subsection (4), an instrument or agreement shall be of no effect to the extent that it purports to create a term of years in contravention of subsection (1).

(4) Where an instrument or agreement purports to create a term of years in contravention of subsection (1) a party to the instrument or agreement may apply to the court for an order—

(a) providing for the instrument or agreement to have effect as if it provided for the creation of a term of years of a specified kind;

(b)providing for the return or payment of money;

(c)making such other provision as the court thinks appropriate.

(5)A commonhold unit is residential if provision made in the commonhold community statement by virtue of section 14(1) requires it to be used only—

(a)for residential purposes, or

(b)for residential and other incidental purposes.

18 Leasing: non-residential

An instrument or agreement which creates a term of years absolute in a commonhold unit which is not residential (within the meaning of section 17) shall have effect subject to any provision of the commonhold community statement.

19 Leasing: supplementary

(1) Regulations may—

(a) impose obligations on a tenant of a commonhold unit;

(b) enable a commonhold community statement to impose obligations on a tenant of a commonhold unit.

(2) Regulations under subsection (1) may, in particular, require a tenant of a commonhold unit to make payments to the commonhold association or a unit-holder in discharge of payments which—

(a) are due in accordance with the commonhold community statement to be made by the unit-holder, or

(b) are due in accordance with the commonhold community statement to be made by another tenant of the unit.

(3) Regulations under subsection (1) may, in particular, provide—

(a) for the amount of payments under subsection (2) to be set against sums owed by the tenant (whether to the person by whom the payments were due to be made or to some other person);

(b) for the amount of payments under subsection (2) to be recovered from the unit-holder or another tenant of the unit.

(4) Regulations may modify a rule of law about leasehold estates (whether deriving from the common law or from an enactment) in its application to a term of years in a commonhold unit.

(5) Regulations under this section—

(a) may make provision generally or in relation to specified circumstances, and

(b) may make different provision for different descriptions of commonhold land or commonhold unit.

20 Other transactions

(1) A commonhold community statement may not prevent or restrict the creation, grant or transfer by a unit-holder of—

(a) an interest in the whole or part of his unit, or

(b) a charge over his unit.

(2) Subsection (1) is subject to sections 17 to 19 (which impose restrictions about leases).

(3) It shall not be possible to create an interest of a prescribed kind in a commonhold unit unless the commonhold association—

(a) is a party to the creation of the interest, or

(b) consents in writing to the creation of the interest.

(4) A commonhold association may act as described in subsection (3)(a) or (b) only if—

(a) the association passes a resolution to take the action, and

(b) at least 75 per cent. of those who vote on the resolution vote in favour.

(5) An instrument or agreement shall be of no effect to the extent that it purports to create an interest in contravention of subsection (3).

(6) In this section “interest” does not include—

(a) a charge, or

(b) an interest which arises by virtue of a charge.

Part-unit: interests

(1) It shall not be possible to create an interest in part only of a commonhold unit.

(2) But subsection (1) shall not prevent—

(a) the creation of a term of years absolute in part only of a residential commonhold unit where the term satisfies prescribed conditions,

(b) the creation of a term of years absolute in part only of a non-residential commonhold unit, or

(c) the transfer of the freehold estate in part only of a commonhold unit where the commonhold association consents in writing to the transfer.

(3) An instrument or agreement shall be of no effect to the extent that it purports to create an interest in contravention of subsection (1).

(4) Subsection (5) applies where—

(a) land becomes commonhold land or is added to a commonhold unit, and

(b) immediately before that event there is an interest in the land which could not be created after that event by reason of subsection (1).

(5) The interest shall be extinguished by virtue of this subsection to the extent that it could not be created by reason of subsection (1).

(6) Section 17(2) and (4) shall apply (with any necessary modifications) in relation to subsection (2)(a) and (b) above.

(7) Where part only of a unit is held under a lease, regulations may modify the application of a provision which—

(a) is made by or by virtue of this Part, and

(b) applies to a unit-holder or a tenant or both.

(8)Section 20(4) shall apply in relation to subsection (2)(c) above.

(9) Where the freehold interest in part only of a commonhold unit is transferred, the part transferred—

(a) becomes a new commonhold unit by virtue of this subsection, or

(b) in a case where the request for consent under subsection (2)(c) states that this paragraph is to apply, becomes part of a commonhold unit specified in the request.

(10) Regulations may make provision, or may require a commonhold community statement to make provision, about—

(a) registration of units created by virtue of subsection (9);

(b) the adaptation of provision made by or by virtue of this Part or by or by virtue of a commonhold community statement to a case where units are created or modified by virtue of subsection (9).

22 Part–unit: charging

(1) It shall not be possible to create a charge over part only of an interest in a commonhold unit.

(2) An instrument or agreement shall be of no effect to the extent that it purports to create a charge in contravention of subsection (1).

(3) Subsection (4) applies where—

(a) land becomes commonhold land or is added to a commonhold unit, and

(b) immediately before that event there is a charge over the land which could not be created after that event by reason of subsection (1).

(4) The charge shall be extinguished by virtue of this subsection to the extent that it could not be created by reason of subsection (1).

23 Changing size

(1) An amendment of a commonhold community statement which redefines the extent of a commonhold unit may not be made unless the unit-holder consents—

(a) in writing, and

(b) before the amendment is made.

(2) But regulations may enable a court to dispense with the requirement for consent on the application of a commonhold association in prescribed circumstances.

24 Changing size: charged unit

(1) This section applies to an amendment of a commonhold community statement which redefines the extent of a commonhold unit over which there is a registered charge.

(2) The amendment may not be made unless the registered proprietor of the charge consents—

(a) in writing, and

(b) before the amendment is made.

(3) But regulations may enable a court to dispense with the requirement for consent on the application of a commonhold association in prescribed circumstances.

(4) If the amendment removes land from the commonhold unit, the charge shall by virtue of this subsection be extinguished to the extent that it relates to the land which is removed.

(5) If the amendment adds land to the unit, the charge shall by virtue of this subsection be extended so as to relate to the land which is added.

(6) Regulations may make provision—

(a) requiring notice to be given to the Registrar in circumstances to which this section applies;

(b) requiring the Registrar to alter the register to reflect the application of subsection (4) or (5).

Common parts

25 Definition

(1) In this Part “common parts” in relation to a commonhold means every part of the commonhold which is not for the time being a commonhold unit in accordance with the commonhold community statement.

(2) A commonhold community statement may make provision in respect of a specified part of the common parts (a “limited use area”) restricting—

(a) the classes of person who may use it;

(b) the kind of use to which it may be put.

(3) A commonhold community statement—

(a) may make provision which has effect only in relation to a limited use area, and

(b) may make different provision for different limited use areas.

26 Use and maintenance

A commonhold community statement must make provision—

(a) regulating the use of the common parts;

(b) requiring the commonhold association to insure the common parts;

27 Transactions

(1) Nothing in a commonhold community statement shall prevent or restrict—

(a) the transfer by the commonhold association of its freehold estate in any part of the common parts, or

(b) the creation by the commonhold association of an interest in any part of the common parts.

(2) In this section “interest” does not include—

(a) a charge, or

(b) an interest which arises by virtue of a charge.

28 Charges: general prohibition

(1) It shall not be possible to create a charge over common parts.

(2) An instrument or agreement shall be of no effect to the extent that it purports to create a charge over common parts.

(3) Where by virtue of section 7 or 9 a commonhold association is registered as the proprietor of common parts, a charge which relates wholly or partly to the common parts shall be extinguished by virtue of this subsection to the extent that it relates to the common parts.

(4) Where by virtue of section 30 land vests in a commonhold association following an amendment to a commonhold community statement which has the effect of adding land to the common parts, a charge which relates wholly or partly to the land added shall be extinguished by virtue of this subsection to the extent that it relates to that land.

(5) This section is subject to section 29 (which permits certain mortgages).

29 New legal mortgages

(1) Section 28 shall not apply in relation to a legal mortgage if the creation of the mortgage is approved by a resolution of the commonhold association.

(2) A resolution for the purposes of subsection (1) must be passed—

(a) before the mortgage is created, and

(b) unanimously.

(3) In this section “legal mortgage” has the meaning given by section 205(1)(xvi) of the Law of Property Act 1925 (c. 20)(interpretation).

30 Additions to common parts

(1) This section applies where an amendment of a commonhold community statement—

(a) specifies land which forms part of a commonhold unit, and

(b) provides for that land (the “added land”) to be added to the common parts.

(2) The amendment may not be made unless the registered proprietor of any charge over the added land consents—

(a) in writing, and

(b) before the amendment is made.

(3) But regulations may enable a court to dispense with the requirement for consent on the application of a commonhold association in specified circumstances.

(4) On the filing of the amended statement under section 33—

(a) the commonhold association shall be entitled to be registered as the proprietor of the freehold estate in the added land, and

(b) the Registrar shall register the commonhold association in accordance with paragraph (a)(without an application being made).

Commonhold community statement

31 Form and content: general

(1) A commonhold community statement is a document which makes provision in relation to specified land for—

(a) the rights and duties of the commonhold association, and

(b) the rights and duties of the unit-holders.

(2) A commonhold community statement must be in the prescribed form.

(3) A commonhold community statement may—

(a) impose a duty on the commonhold association;

(b) impose a duty on a unit-holder;

(c) make provision about the taking of decisions in connection with the management of the commonhold or any other matter concerning it.

(4) Subsection (3) is subject to—

(a) any provision made by or by virtue of this Part, and

(b) any provision of the memorandum or articles of the commonhold association.

(5) In subsection (3)(a) and (b) “duty” includes, in particular, a duty—

to pay money;

(b) to undertake works;

(d) to give notice;

(e) to refrain from entering into transactions of a specified kind in relation to a commonhold unit;

(f) to refrain from using the whole or part of a commonhold unit for a specified purpose or for anything other than a specified purpose;

(g) to refrain from undertaking works (including alterations) of a specified kind;

(h) to refrain from causing nuisance or annoyance;

(i) to refrain from specified behaviour;

(j) to indemnify the commonhold association or a unit-holder in respect of costs arising from the breach of a statutory requirement.

(6) Provision in a commonhold community statement imposing a duty to pay money (whether in pursuance of subsection (5)(a) or any other provision made by or by virtue of this Part) may include provision for the payment of interest in the case of late payment.

(7) A duty conferred by a commonhold community statement on a commonhold association or a unit-holder shall not require any other formality.

(8) A commonhold community statement may not provide for the transfer or loss of an interest in land on the occurrence or non-occurrence of a specified event.

(9) Provision made by a commonhold community statement shall be of no effect to the extent that—

(a) it is prohibited by virtue of section 32,

(b) it is inconsistent with any provision made by or by virtue of this Part,

(d) it is inconsistent with the memorandum or articles of association of the commonhold association.

32 Regulations

(1) Regulations shall make provision about the content of a commonhold community statement.

(2) The regulations may permit, require or prohibit the inclusion in a statement of—

(a) specified provision, or

(b) provision of a specified kind, for a specified purpose or about a specified matter.

(3) The regulations may—

(a) provide for a statement to be treated as including provision prescribed by or determined in accordance with the regulations;

(b) permit a statement to make provision in place of provision which would otherwise be treated as included by virtue of paragraph (a).

(4) The regulations may—

(a) make different provision for different descriptions of commonhold association or unit-holder;

(b) make different provision for different circumstances;

(c) make provision about the extent to which a commonhold community statement may make different provision for different descriptions of unit-holder or common parts.

(5) The matters to which regulations under this section may relate include, but are not