The Law Society library considers recent changes to what happens when a qualifying tenant dies after having served a section 42 notice in a statutory lease extension
How does the death of a qualifying tenant affect serving a section 42 notice in a statutory lease extension following the commencement of LFRA 2024?
This process is affected by changes and commencement of sections of the Leasehold and Freehold Reform Act (LFRA) 2024, specifically section 27 on removal of qualifying period before enfranchisement and extension claims, which came into force on 31 January 2025.
Prior to this, Lexis+ has a Q&A Can an executor of the estate of a deceased tenant serve a notice under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993? from 2018 (please note, a membership is needed to view this webpage).
“The legislation also provides that where a tenant had the right to a lease extension immediately prior to their death, the personal representatives may serve a section 42 notice in order to exercise the right to extension (Leasehold Reform, Housing and Urban Development Act (LRHUDA) 1993, s 39(3A)).
“However, the legislation also provides that the personal representatives may only serve such a notice within two years of the grant of probate or letters of administration.
If the notice is duly served within the requisite time frame the right can be progressed by the personal representatives.”
Hague on Leasehold Enfranchisement 7th Ed. (2021) covers collective enfranchisement (rather than a statutory lease extension):
“If a participating tenant dies, his personal representatives have 56 days (beginning with the date of death) to notify the nominee purchaser of the death of the tenant and whether they elect to withdraw from participation. No form of notification is prescribed. Unless they give such notification of withdrawal, they are regarded as a participating tenant as from the date of the tenant’s death and so long as his lease remains vested in them. Whilst executors are personal representatives before the grant of probate, 25 administrators cannot give such a notice until after the grant of letters of administration.” Para 24-06 states that the personal representatives are to be regarded as a participating tenant.
However, on receiving this enquiry again after the commencement of section 27 of LFRA 2024, some of the commentary reflects the updated legislation.
Lexis+ practice note – Guide to lease extensions of flats under the Leasehold Reform, Housing and Urban Development Act 1993, in the section on the right to an extended lease states: “Prior to 31 January 2025, the right to an extended lease could also be exercised by the personal representatives of a deceased qualifying tenant who had not exercised the right prior to their death, provided that they gave notice to exercise the right within two years of the grant of probate or letters of administration. That right was abolished from 31 January 2025.”
Therefore, the continuing effects of the commencement of LFRA 2024 will be seen as processes and commentary are updated.
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