Commonhold and leasehold reform

It will be interesting to see the Government’s proposals for leasehold and commonhold reform in the coming months. Unlike in England, where the system of freehold/leasehold still plays a prominent role in property law, feudal tenure was abolished in Scotland by the Abolition of Feudal Tenure (Scotland) Act 2000.

It is understood that the Commonhold White Paper and the Leasehold and Freehold Reform Act 2024 propose that commonhold will become the default tenure in England for new flats, giving homeowners direct ownership and control over their buildings without the need for third-party landlords.

The Scottish perspective

In Scotland, heritable (the Scottish equivalent of freehold) ownership of flats is the standard position. It is typical for flat owners to have a heritable title combined with either a right of common ownership or servitude rights (the Scottish equivalent of easements) for use of common areas within the larger building and the surrounding development. We also have a statutory scheme, introduced under the Tenements (Scotland) Act 2004, which provides a structure for maintenance and management of tenements where there is a gap in title deeds. It creates rights for, and imposes maintenance obligations on, flat owners in relation to the common parts of the larger building – the structure, solum, attic, common stairs, chimneys and so on.

Floating freeholds

One area which will see the change in England is “Floating Freeholds”. In Scotland, it has long been possible to own a heritable title interest that “float” above or below another’s property. The Scottish land registration system did introduce complexities around how those titles can be identified on an ordnance survey-based title plan and requirements to prove possession of airspace, but it is a system that Scottish property lawyers have become familiar with over the years. So, for example, we are used to a situation where a flat lies above a mews lane, with different owners both being subject to statutory requirements to contribute to upkeep.

We are here to help

We are expecting to see reforms in England centring on removing ground rents, simplifying lease extensions and enhancing transparency in service charges and estate management. With many of these reforms already implemented in Scotland over the past two decades, our team is well-versed in navigating the complexities of these changes — positioning us to provide informed guidance on any queries you may have.

If you have any questions on commonhold or leasehold reform, please contact us here or email euan.mellor@andersonstrathern.co.uk.