Commonhold

Commonhold is a form of freehold estate, introduced by the Commonhold and Leasehold Reform Act 2002 (CLRA 2002), which took effect from 27 September 2004.

Commonhold was introduced to address some of the key problems associated with leasehold property, in particular to combine the security of freehold ownership with the management potential of positive covenants which could be made to apply to each owner of an interdependent property. Unlike freehold ownership, commonhold provides a straightforward legal mechanism for making the burden of positive covenants (such as an obligation to pay towards maintenance and services) bind successive owners (for guidance on positive covenants and freehold land, see Practice Note: Positive covenants—binding successors in title).

A commonhold consists of separate commonhold units and common parts. The owners of the units are called unit-holders. A commonhold unit need not contain all or any part of a building. The common parts are shared facilities. In a shared building, the common parts may include facilities such as the roof, stairs and landings. On an estate, they might include common access roads or car parking. The common parts are owned and managed

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Insolvency, declarations of trust, loan agreements, artificial asset protection, sham transactions, transactions defrauding creditors, interspousal asset transfers, change of position defence and wife’s entitlement to share of husband’s assets (Sayers v Dixon)

Restructuring & Insolvency analysis: The court held that six declarations of trust (DoTs) executed by the transferor (Mr Dixon) in favour of his wife (Mrs Dixon) constituted transactions defrauding his creditors within the meaning of section 423 of the Insolvency Act 1986 (IA 1986) and that two of them, purporting to transfer all his future assets and income to Mrs Dixon, along with an accompanying loan agreement, were shams which were void and ineffective. It set aside the DoTs and ordered Mrs Dixon to restore the value of three transferred properties (which had been converted into £551,589 cash) to Mr Dixon’s trustees in bankruptcy (trustees) together with interest of £101,726. It also ordered an account to be taken of the funds that had been transferred to Mrs Dixon or on her behalf by Mr Dixon over the seven years between the date of the DoTs and his bankruptcy. The court dismissed Mrs Dixon’s defence of change of position to the trustees’ claim for restoration, finding that even if such a defence were generally available (which is unclear), she had not acted in good faith and could not rely on it. It also dismissed her defence that, having been married to Mr Dixon for many years, she was entitled to half his assets and/or an entitlement to a share of them by virtue of a right to be maintained. Written by Jonathan Lopian, barrister at New Square Chambers, who acted for the successful claimants.

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