7.1 Deceased Tenants: Lease Extensions under LRHUDA 1993
Overview
As of 31 January 2025, amendments introduced by the Leasehold and Freehold Reform Act 2024 (LFRA 2024) have removed the previous requirement for tenants to own the lease for at least two years before claiming an extension. This change simplifies the process, including for personal representatives (PRs) of deceased tenants.
When a tenant dies, the right to extend the lease, if it existed immediately before death, passes to their PRs (executors if there is a will, or administrators if intestate). PRs must obtain a grant of probate or letters of administration to acquire legal title and deal with the property. Prior to the LFRA 2024 amendments, PRs could serve a Section 42 notice (the tenant’s claim notice) within two years of the grant under Section 42(4A) of LRHUDA 1993, without needing to satisfy the two-year ownership rule themselves. Alternatively, they could qualify in their own right after two years of ownership as PRs.
However, Section 42(4A) and related provisions (e.g., Section 39(3A), which treated PRs as satisfying ownership requirements based on the deceased’s qualification) have been repealed by Section 27 of LFRA 2024. This means PRs are now treated as standard qualifying tenants and can serve a Section 42 notice immediately after obtaining the grant, without a two-year time limit from the grant or any ownership waiting period.
Key Executorship and Probate Issues
1. Timing and Grant of Probate Requirement
PRs cannot serve a Section 42 notice before obtaining the grant, as it vests legal title in them under Section 27(5)(a) of the Land Registration Act 2002. Without it, they lack the authority to act as the tenant. Obtaining probate typically takes at least four months after death, which can delay the process. During this period, PRs have limited powers and cannot bind the estate to contracts like a lease extension.
If the deceased had already served a Section 42 notice before death, the claim continues, but PRs need the grant to complete it (e.g., sign the new lease). Delays may require protective applications to the First-tier Tribunal (Property Chamber) or County Court to extend statutory deadlines and prevent the notice from being deemed withdrawn under Sections 43(3) or 53 of LRHUDA 1993. Such applications cost around £1,000 for the County Court or less for the Tribunal.
2. Eligibility and Qualification
The deceased must have been a qualifying tenant immediately before death (i.e., holding a long lease of a flat). PRs step into this role post-grant. With the LFRA 2024 changes, PRs no longer face a two-year limit from the grant to serve notice, nor do they need to wait two years as owners. They can proceed as soon as the grant is issued, provided the lease qualifies (e.g., originally granted for over 21 years).
If the flat was held as joint tenants, ownership automatically passes to the survivor(s) on death, who can extend without probate (though updating the title register is recommended to avoid disputes). For tenants in common, PRs must join surviving owners in the claim or transfer the share to beneficiaries first.
3. Practical Considerations for Executors
Serving the Notice: PRs serve the Section 42 notice in their capacity as executors/administrators. The notice must include details of the flat, proposed premium, and terms. They do not need to be registered proprietors at the Land Registry to serve, as the grant provides legal ownership.
Premium Calculation: The premium is based on factors like the remaining lease term, ground rent, and property value. Death does not alter this, but delays from probate may affect market valuations.
Assignment and Sale: If PRs wish to sell the flat during the process, they must assign the benefit of the Section 42 notice simultaneously with the lease transfer (under Section 43(3)). Failure to do so invalidates the claim, requiring a restart. Beneficiaries inheriting the flat can extend immediately post-transfer, without waiting periods.
Costs and Liabilities: PRs are personally liable for costs if the claim fails or is withdrawn. They should seek indemnity from the estate. Extending the lease can enhance the estate’s value, aiding distribution.
4. Potential Challenges and Case Law Insights
In Villarosa v Ryan [2018] EWHC 1914 (Ch), the High Court confirmed that PRs could serve notice after two years of their own ownership, even outside the two-year probate window, provided they qualified independently. Post-LFRA 2024, this distinction is moot, as no ownership period is required.
Issues arise during the registration gap (post-transfer but pre-Land Registry update), where PRs retain legal title for notice purposes. Conveyancers should ensure notices are accepted by the landlord before completion.
Freeholders may challenge claims if the title register still lists the deceased, but this is unlikely to succeed if probate evidence is provided.