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Housing Studies, 

Vol. 21, No. 1, 35–52, January 2006 

Cultural Expectations of Homeownership. 

Explaining Changing Legal Definitions of 

Flat ‘Ownership’ within Britain 

DOUGLAS ROBERTSON 

Housing Policy and Practice Unit, University of Stirling, Stirling, Scotland 

(Received September 2004; revised July 2005) 

ABSTRACT Following the break-up of privately rented flats in both England and Wales, and 

Scotland, two distinct property ‘ownership’ systems emerged. Each sought to provide individual 

‘ownership’ of the flat and collective management of the block in which the flat was contained. 

Leasehold ‘ownership’ effectively retained the previous landlord-tenant relationship because of a 

peculiarity in English law that only allows ‘positive covenants’, such as maintenance obligations, to 

be enforced on the first purchaser of a flat, not subsequent purchasers. Although in Scotland outright 

individual ownership of a flat was legally possible, the management arrangements covering the 

common parts of the building have not proved satisfactory. Neither legal arrangement put in place 

an ‘ownership’ or ‘governance’ regime which matched popular cultural expectations of what 

individual homeownership should constitute. The scale of and scope of property law reform over the 

last 30 years illustrates how these popular cultural expectations have demanded due recognition 

within the British property system. 

KEY WORDS: Homeownership, flat ‘ownership’, culture of homeownership, property law reform, 

Britain 

Tenure Transfer 

During the last 40 years Britain has witnessed a dramatic change in the nature of property 

ownership. The switch from council renting to owner occupation is, perhaps, the bestknown 

change. The Conservative Government’s flagship Right to Buy policy transformed 

tenure and, crucially, public attitudes towards homeownership. However, there have been 

other significant tenure transformations which, although receiving less overt publicity, 

have had as equally a dramatic impact. 

The post-war switch from private renting to individual owner occupation gained 

momentum after the implementation of rent deregulation legislation in the late 1950s 

Correspondence Address: Douglas Robertson, Director, Housing Policy and Practice Unit, Colin Bell 

Building, University of Stirling, Stirling, FK9 4LA, Scotland. Tel: 44 (0) 1786 467720. Fax: 01786 466323. 

Email: d.s.robertson@stir.ac.uk 

ISSN 0267-3037 Print/1466-1810 Online/06/010035–18 q 2006 Taylor & Francis 

DOI: 10.1080/02673030500391080

36 D. Robertson 

and the rent control legislation of the 1960s (Hamnett & Randolph, 1988). The emergence 

of what has become known as the ‘rent gap’—the difference in property valuations 

depending on their tenure status—encouraged landlords to sell out, thus liquidising what 

they had long viewed as a declining asset (Hamnett & Randolph, 1988). Significant sums 

of money were to be had from selling into owner occupation, rather than continuing to rent 

out property within a strictly controlled market. As a result, within 20 years, large tracts of 

what had previously been privately rented property became a core component of Britain’s 

owner-occupied stock. 

While the bulk of properties that transferred ownership in this way were individual 

houses and, in particular, terraced houses, there were also a significant number of flats. 

These were either purpose built flatted properties, or created as a consequence of 

conversion work on what had been either a substantial terraced or detached family house. 

The emergence of a significant number of individual ‘owners’ within a property that had 

previously been owned and managed by one single owner, the landlord, threw up a number 

of ownership and management challenges to the popular notion of what constituted 

homeownership. Interestingly, this pattern of tenure change affected most Western 

countries at the same time, perhaps reflecting more fundamental changes in the nature of 

capital accumulation (Smith, 1996). 

British Homeownership Culture 

Expanding homeownership has been perhaps the key feature of post-war housing policy in 

Britain (Saunders, 1990). The Conservatives have long championed the ambition of 

creation of a ‘property owning democracy’, and given their long political hegemony in 

Britain over this period, they can be credited with bringing about significant growth in 

homeownership. That is not to say Labour was far behind. Their 1964 Election Manifesto 

noted, for example, that homeownership was the ‘right and natural tenure’ for the British 

(Labour Party, 1964). 

However, the Conservatives always had the clearer ideological agenda, believing that 

“property, power and responsibility alike must not become absorbed into the State 

machine, but widely spread throughout the community” (Conservative Party, 1955). The 

then Housing Minister, Harold Macmillan, in promoting early local council house sales 

schemes also took the view that “homeownership satisfies some deep desire in their 

hearts” (Saunders, 1990, p. 59). Twenty-five years later the Conservatives introduced 

perhaps their best known and most populist housing policy, under the Housing Act 1980, 

which allowed council tenants to buy their homes, at a substantial discount. This, more 

than any other piece of legislation, transformed the tenure map of Britain. Now what 

remains of the social rented sector has become a safety net for those people unable to 

operate within the property market (Murie, 1997). 

With this sustained drive to create homeownership, a set of popular notions has developed 

articulating the perceived merits of this property ownership arrangement. This is perhaps 

best encapsulated in the phrase ‘an Englishman’s home is his castle’. It is assumed that “for 

most people owning one’s home is a basic and natural desire”, and that the recent spread of 

homeownership was “satisfying deep seated social aspirations” (Gray, 1982, p. 269). 

Popular aspirations for homeownership are, ... quite a recent phenomenon. 

However, as it has become more normal for ordinary people to buy their housing

Cultural Expectations of Homeownership 37 

rather than rent it, so the idea has developed that this is also more natural. Because 

so many people today do own their own homes and so many others would like to, we 

tend to assume that such a desire is in some way the expression of a natural 

inclination or instinct. (Saunders, 1990, pp. 58–59, original emphasis) 

The issue of homeownership appearing both natural and normal was further explored by 

Gurney (1998, 1999). Through utilising Foucault’s concept of ‘normalising power’, he 

examined the notion of the ‘natural’ basis of ownership and, in doing so, shows that any 

other forms of tenure, as a consequence, are considered abnormal: 

Thus it becomes normal for the majority of householders in Britain to aspire to 

homeownership, it becomes normal for homeownership to be associated more 

closely than any other form of housing consumption with evocative and emotional 

ideas of home, it becomes normal for homeowners to be represented as good 

citizens, and good parents, it becomes normal for a preference for homeownership to 

become constructed as a fact of human nature. (Gurney, 1999, p. 179) 

This focus on popular conceptions of homeownership being a natural state of affairs only 

takes us so far. Critically, it is important to understand exactly what underpins this strong 

and growing cultural attachment to owning as opposed to renting housing. To date, the 

merit of owning versus renting housing has focused almost entirely on the ideologically 

charged debates surrounding the Right to Buy. 

The concept of tenure essentially relates to the legal arrangements existing between 

properties and their owners and inhabitants. Thus tenure differences are essentially 

variations of property rights and obligations of property owners and inhabitants. 

That is, tenure may influence the way in which households acquire, use, alter and 

then ultimately dispose of housing. Tenure per se can therefore influence housing 

satisfaction. (Maclennan, 1982, p. 183) 

Saunders (1990) notes a strongly held belief that ownership of one’s home is in some way 

the realisation of a deep seated and instinctual desire that is thwarted or sublimated by 

rental systems. So while tenants enjoy considerable rights of use, something they share 

with homeowners, their rights of control and property disposal are very much denuded in 

comparison. He goes on to argue that “because owners enjoy a different set of rights from 

those enjoyed by tenants, it follows that people may aspire to one tenure rather than the 

other because they want rights which are guaranteed by one but not the other” (Saunders, 

1990, p. 98). As Davis (1948) famously noted “Property relations are relations of power 

between people: The possession of exclusive rights to something that is scarce and 

valuable necessarily implies the possession of power over others who also desire the 

scarce and valuable things” (Davis, 1948, p. 454). 

Such rules simultaneously enable and constrain (Giddens, 1984). It is hard to envisage 

a system that places no restriction whatsoever on the right of use (Reeve, 1986, p. 18). 

So owners are also constrained, but not to the same extent as tenants. The success of the 

Right to Buy largely emanates from the notion that tenants could free themselves from the 

petty controls exercised by local authority bureaucrats (Balchin, 1995; Ravetz, 2001). As 

will be shown, these very same arguments equally apply to leasehold which, legally, is


after all a form of renting rather than ownership. Leaseholders have sought to alter their 

tenure status to ensure they can achieve a degree of parity with the rights they conceive as 

being core to owner occupation. 

Ensuring such rights and responsibilities over property is also critical in securing a 

distinct sense of place and belonging within the home, and a key foundation ontological 

security (Giddens, 1984). The exclusive rights of control which homeownership confers are 

in some way tied up with feelings of psychological security and social well being (Ryan, 

1983). Ryan argues that homeownership is critical to personal privacy, and without it we are 

insecure because we require to appear in public, to an audience (Ryan, 1983, p. 241). The 

second related issue is that in Western culture, domestic space can play an important role in 

expressing individual identity (Saunders, 1990). In examining this concept Saunders (1990) 

argues that ontological security is core to explaining the growth of homeownership. 

Through empirical evidence he shows that owners invest a quite different meaning in their 

homes than tenants, such that they tend to equate their houses with images of comfort and 

relaxation. Tenants found it difficult to draw such associations, rather they were found to be 

alienated from their homes, because they were living in someone else’s house. This 

inhibited them from doing work, or making improvements to that house. By contrast, 

owners were found to be more financially and emotionally secure with the time and energy 

to improve and personalise their living environment. Owner occupation was therefore seen 

as the means of experiencing and realising values of autonomy, personal independence and 

emotional security (Saunders, 1990). Saunders goes on to state that homeownership enables 

individuals to personalise their surroundings, fostering a stronger sense of belonging and 

personal achievement. This confirms the observation that: “The house, particularly the 

owner occupied house, seemed to be a powerful symbol of order, continuity, physical safety 

and a sense of place and physical belonging” (Rakoff, 1977, p. 94). 

Homeownership has deep cultural significance within British society. Yet within the 

context of flats, rather than houses, such notions of what constitutes ‘ownership’ have long 

been challenged. Who owns what, and who exactly is responsible for what parts of the 

building, fails to readily equate with these deep-seated cultural notions of what constitutes 

homeownership. The following section examines this discrepancy in respective of the flat 

‘ownership’ situations in both England and Wales and Scotland. As will be illustrated, the 

desire to secure the popular cultural expectations of homeownership can help to explain 

the drive to transform leasehold tenure into a more acceptable form of ‘ownership’. In 

Scotland, while ownership of flats has always been possible, the resulting lack of control 

over the properties’ governance regimes has generally failed to measure up to the 

expectations held for homeownership. 

A Feudal Heritage and Compromised Ownership 

Property laws in Britain still retain something of their feudal antecedence. Property 

holding in the English context is defined by the legal terms ‘freehold’ and ‘leasehold’. 

‘Hold’ is a feudal term that means land held for someone else, namely the Crown ‘in fee’ 

of a service. So when the King gifted land to a noble, it was on the expectation that the 

landlord would make soldiers available from his tenantry and collect taxes. The landlord, 

in turn, could rent land, including property, out to his tenants, while still exercising 

stewardship over his estate. The Law of Property Act 1925 swept the feudal aspects of


tenure away, but left the two pre-existing legal arrangements for holding land, ‘freehold’ 

and ‘leasehold’. 

Freehold constitutes outright ownership, encompassing the rights and responsibilities 

that are attached to the specific property bundle that is held. Most people, drawing on 

today’s cultural norms, consider the word ‘free’ to mean that as the owner you are free to 

do what you want with the property. Freehold has worked reasonably well for the most 

part, the exception being the legal rigmarole associated with the transfer of ownership, 

through the house buying and selling process (Randolph et al., 1998). 

Leasehold literally means a lesser holding, or lesser interest in property. In a strict legal 

sense, as noted earlier, leasehold tenure is not ownership at all: a leaseholder is in fact a 

‘tenant’ of a ‘landlord’, or more accurately the ‘freeholder’, who holds outright ownership 

of the building and the land upon which it sits (Barnes, 1968). The leaseholder has the right 

to occupy the property in return for a significant initial premium and a small annual ground 

rent. The relationship between the ‘freeholder’ and the ‘leaseholder’ is regulated by 

contract. This contract sets out the length of the lease: typically, for residential property the 

term is initially set at 99 or 125 years. At the conclusion of this specified period—the ‘term 

of years absolute’—the legal rights to the land, which typically includes the dwelling, 

revert back to the freeholder (Greenish, 1994). The leaseholder has the right to sell the 

property, or more accurately, the occupancy rights to that property for the remaining 

period of the lease. Lenders treat long leases as mortgageable assets, provided they have a 

sufficient unexpired term. However, the value of any lease declines over time, and this 

explains why the lease is described as a ‘wasting asset’. This is clearly at variance 

with what is expected of homeownership, namely that the value of the housing asset grows 

over time. 

Until the 1960s, flats in England and Wales had been conceived of as being only for 

renting, with long leaseholds only being used for houses. Under the Leasehold Reform 

Act 1967 leaseholders of houses, not flats, with leases of over 21 years, were given a 

compulsory right to acquire the freehold. This reform came about in response to problems 

associated with the imminent expiry of leases granted on houses during the late 

nineteenth century (Cole & Robinson, 2000). Purchasing the freehold for leasehold 

houses became the norm. However, with the break-up of the flat holdings held by 

landlords during the 1960s and 1970s, leasehold was the only method to facilitate home 

‘ownership’ in flats. Outright or ‘freehold’ ownership of individual flats still remains very 

unusual in England and Wales, because it is not possible to make satisfactory provision 

for ongoing maintenance due to a peculiarity in English law. This is due to the fact that 

‘positive covenants’ or obligations (as distinct from negative covenants or restrictions) 

can only be enforced on the first buyer of the property, not subsequent purchasers 

(Robertson & Rosenbury, 2001). Thus any agreement between the initial purchasers of 

the flat in a block to share the costs of maintenance would become ineffective once the 

flat had been resold. 

Therefore, it is the freeholder, as the property ‘owner’, who is principally responsible 

for organising management and maintenance under the leasehold system, either directly or 

through a managing agent. All costs associated with these functions are passed directly 

onto the leaseholders in the form of service charges. Leaseholders are obliged to pay these 

charges through the contractual arrangements set down in their lease. Failure to do so 

could result in the leaseholder losing their right to reside there, through what is termed 

‘forfeiture’: the seizure of the property by the freeholder, with no right of compensation for


the leaseholder. This represented an entirely new situation, because previously rents had 

been all inclusive, with landlords maintaining the structure out of this income. Now, with 

service charges all leaseholders were required to cover these costs entirely. Leaseholders 

therefore realised that they were in fact a second-class type of homeowner, one who in 

reality was not that much different from a tenant. 

Unlike the situation in England, under Scots Law it is legally possible to make 

obligations run with the title of the property: thus individual ‘ownership’ of flats was 

feasible. While some large Edwardian properties had been built solely for purchase, this 

was very much the exception. As in England and Wales, it was not until the 1960s, 1970s 

and into the 1980s that previously privately rented flats were sold into homeownership. 

Yet, while Scotland had no legal need for a leasehold arrangement, individual flat 

ownership did not in itself guarantee a robust system of on-going property governance. 

The term ‘governance’ is used to convey both the management and property maintenance 

functions that are necessary within any multi-owned property. As will be illustrated, while 

flat owners in Scotland had ownership rights similar to other homeowners, they did not 

have the same degree of control over property governance matters and thus their 

expectations of what constituted homeownership failed to fully match the expected 

cultural norms. Again, flat ownership was perceived as being a lesser form of 

homeownership. 

Scotland has a distinct and different legal tradition, preserved by the Act of Union with 

England in 1707. Scotland has only just reformed what was an entirely feudal property 

ownership system. Prior to November 2004 property owners were still legally defined as 

‘vassals’, or feudal tenants. Land ownership was still shared with the ‘superior’, the 

landowner. Scotland was perhaps the last country in Europe to reform its feudal form of 

land holding. 

Every property in Scotland since 1617 has what is called a title deed. Title deeds define 

the physical extent of the land and property holding. They also set down the rights and 

responsibilities that pertain to this holding, the rules which both enable and constrain. 

Deed conditions typically set down all the burdens, servitudes and conditions which apply 

to that holding. These were drawn up by the original developer, and often include ‘feudal 

burdens’ which were imposed on the land by the original landowner. This acted as an early 

form of land-use planning, setting down what type and scale of development was 

acceptable to the land seller. Such title provisions still act as a constraint on current 

development, and any changes to a house, such as building an extension, may require both 

the consent of and a payment to the superior. 

Within a tenement property, “legally defined as being any that is a separate and self 

contained set of premises, whether or not on the same floor, forming part of a building 

which is divided horizontally” (Robertson, 2001, p. 1), deed provisions can be made to 

ensure the upkeep, management and maintenance of the common parts of the building. 

Title deeds should make express provision for the ownership and governance of these 

common parts, but often do not, or do so in a partial manner. Detailed provisions are often 

found within a secondary document, the ‘deed of condition’. These started appearing 

from the 1850s onwards, following the massive tenement building boom in industrial 

west central Scotland (Robertson & Rosenberry, 2001). This document was an essential 

tool that allowed the ‘factors’, 1 commercial property managers, to facilitate individual 

property holding within a tenement by a number of small investors, and its subsequent 

management. The factors organised small investor landlords, each of whom held a few


flats within a block. They then managed and maintained the blocks, providing each small 

investor with their profit. Therefore, it was essential that the specific maintenance 

responsibilities were detailed, together with any associated management arrangements to 

ensure decisions were implemented. The ‘deed of condition’ typically makes provision 

for the appointment of a factor, and detailed procedures to ensure payment of works and 

services (Sim, 1995). With the sale into owner occupation these conditions merely 

transferred with title. Title deeds incorporating a ‘deed of condition’ are common in 

Glasgow and the West of Scotland. Although the actual ‘deed of condition’ that applies to 

a particular block may vary in its detail, the basic provisions are relatively standard. 

In Edinburgh, and other parts of the East of Scotland, this tradition is absent. This was 

because of the difference in landlord holding, with larger individual holdings negating the 

need for factors (Robertson & Bailey, 1996). As and when individual flats were sold off, 

an individual disposition was generally created for each flat. As a result, it is not 

uncommon for different burdens to be included within the title deeds for individual flats 

within the same block. One consequence of this is that to ensure effective governance, an 

individual would need to have sight of each and every title, because each obligation in 

this regard within the block could differ. 

So while the theory of individual contracts to organise the governance of tenements is 

sound, the practice has proved less than satisfactory. As a result, specified management 

arrangements are often partial and inadequate, if present at all. Generally speaking, the 

older the title deeds the less specific detail they contain. Crucially, title deeds often fail to 

prescribe a decision-making process that allows owners to come to a decision that is 

binding on them all. So it is possible that owners may be obliged to maintain the common 

parts, but the title deeds make no provision for binding majority decision making. 

Further, ensuring everyone pays and agrees the apportionment of the associated costs can 

also be a fraught area. For real burdens to be effective they require to appear within the 

title. So, for example, if cost apportionment is based on a secondary document, such as 

the now redundant property Valuation Roll, this is not legally enforceable. As a result of 

these contractual drafting omissions or errors it is easy for owners to avoid their 

responsibilities. 

In Scotland it has been assumed that modern title deeds would resolve many of the 

problems associated with partial and in many cases defective deeds. Modern deeds 

typically set in place a comprehensive property governance system. However, given that 

these relate to relatively new flat block developments they have yet to be tested when high 

cost major works are required. It is also worth stating that being in possession of a 

comprehensive title deed does not necessarily deliver owner satisfaction. There is a wellvoiced 

concern, especially in private sheltered housing, 2 that certain modern title deeds 

deny owners any real choice in the quality of service offered, or any say in the selection of 

property manager (Scottish Executive, 2000). Within property management circles there is 

the notion of the ‘empowered factor’, who should be left to decide how the building 

is best managed. To a degree this experience effectively mirrors that of the freeholder / 

leaseholder relationship, in that the actual property owners have no real say in the 

governance of the building, and are expected to pay all associated costs accrued by 

the property manager, whose contract was typically set in place by the developer prior to 

the individual flat owners taking up residence. 

So while some flats have a comprehensive set of governance arrangements, which 

facilitate the effective day-to-day running of the property to the satisfaction of all owners,


others are very scant, making executing even the most basic maintenance task a real 

challenge. In such cases the common law, or so-called ‘law of the tenement’ provisions 

can apply. The ‘law of the tenement’ provides a basic default position for all flats. 

However, this only comes into play where the title deeds are silent in relation to a 

particular issue. If there are title provisions, and even though they prove unworkable, they 

take precedence over the statutory common law system. The ‘law of the tenement’ adopts 

the view that ownership within the building is individual, not collective. The only 

exceptions are the common close, 3 common stairs and the roof section above the common 

stairs. Under these arrangements top floor flats have the responsibility for maintaining 

their share of the roof immediately above their property, and ground floor flats take 

responsibility for the basement and solum 4 area immediately below them. The differing 

maintenance responsibilities are reflected in varying property values, with top flats being 

cheaper than other flats. Such apportionment of responsibilities has long been considered 

unfair. 

Under the common law, given the pre-eminence of individual responsibility, there is no 

requirement for a common decision-making body. So if the title deeds made no provision 

for a fair apportionment of the costs, then the common law offers no help. Owners often 

work round these obstacles, but any such collective arrangement has no legal standing, and 

is open to challenge by any owner within the block. 

There was one other legal support for flat owners in Scotland, the law of ‘common 

interest’. This was designed to protect an individual’s property by stating that each flat 

owner has a ‘right of common interest’ in those parts of the building, even those they do 

not own, which provide either support or shelter to their property. Owners may carry out 

building works to their own property, but these works must have due regard to the ‘duty of 

common interest’ to their neighbour’s property. For example, removing an internal 

structural wall would be a breach of these responsibilities. 

Despite the fact that the title deeds may provide an unworkable governance regime, but 

one which at the same time denies even the intervention of the basic common law 

provisions, it is almost impossible to alter them. This is because such a change represents 

an alteration to the nature of ownership, the rules that enable and constrain, and as such 

demands the unanimous agreement of all owners, and for those with a mortgage, the 

lenders would also have to concur. 

The lack of exclusive rights of control over the governance of the property ensures that 

flats in contrast to houses provide less psychological security and social well being. 

Personal privacy is also challenged because to properly manage the properties’ common 

elements all owners must come together and agree a course of action, which depending on 

the title deed provisions may not be enforceable on all parties. Financial and emotional 

security can be sorely challenged under such arrangements where you as an owner need to 

appear to an audience. 

Leasehold in England and Wales has also long been fraught with difficulties, not least 

because leaseholders do not fully appreciate that they are not homeowners, as this term is 

popularly understood: 

Leaseholders commonly balked at referring to themselves as tenants, preferring to 

consider themselves owner occupiers. Their legal status had been made clear to 

them, however, by the limited control and freedom they were able to exercise over 

significant aspects of their occupation. (Cole & Robinson, 2000, p. 608)


In common with Scotland there have been additional problems associated with the 

defective drafting of leases, and the financial consequences of the ‘wasting asset’ problem, 

whereby the property’s value falls and fewer people are interested in purchasing as the 

lease moves towards its end, in stark contrast with normal financial expectations of 


However, the most fundamental criticism of the leasehold system, and the source of 

great resentment on the part of leaseholders, is that while they reside in the property, and 

pay for its management and maintenance, they are denied any say in these matters. It is the 

freeholder, typically a non-resident, who decides upon the quality and cost of the 

management and maintenance regime. Not only does the freeholder determine these 

charges, but they also hold a monopoly over the provision of such services. There is strong 

evidence that this arrangement is widely abused, with unscrupulous freeholders profiting 

from their position (Cole & Robinson, 2000). This became a campaigning issue for the 

London Evening Standard. It set up a hotline in November 1995 for leaseholders to report 

‘nightmare landlords’, which resulted in 800 calls from an estimated 3600 victims (Cole & 

Robinson, 2000). Interestingly, the campaign for leasehold reform and greater control of 

‘despotic’ freeholders dates back to Gladstone’s Liberal Government of 1884 (Hague, 

1999; Marcus, 1999). Exclusive rights of control are entirely missing within the leasehold 

context. Leaseholders are open to the petty controls of the freeholder, in a relationship 

which confirms their tenant rather than owner status. 

Despite a steady stream of Private Members Bills over the following century to improve 

leaseholders’ rights over landlords, the campaign’s first real success was the fore 

mentioned Leasehold Reform Act 1967. Ironically, at the same time this Act was placed 

on the Statute Book the then Labour Government introduced the Rent Act 1967 which did 

more than any other piece of legislation to stimulate the ‘break up’ of flats from renting 

into leasehold (Marcus, 1999). Landlords, especially institutional landlords, strove to 

avoid what they considered draconian rent control while, at the same time seizing the 

opportunity to make substantial profits from selling off individual flatted property on long 

leases (Hamnett & Randolph, 1988). Since then reform has come thick and fast as 

consecutive governments have attempted to solve the various problems inherent in the 

leasehold system, especially as it applies to flats. However, rather than focus on altering 

the power relationship between freeholder and leaseholder, the focus has altered to trying 

to ensure that the experience of flat ‘ownership’ more closely equated with the 

expectations of homeownership. 

Prior to the most recent set of property reforms, covering both England and Wales, and 

Scotland, flat ‘ownership’ within Britain displayed two distinct levels of disengagement 

from the cultural norms expected of homeownership. Within England and Wales, flat 

owners were just not owners, but merely tenants. As such they had very limited rights over 

their property, and their expectations of ownership were unfulfilled as effectively, for all 

intents and purposes, they were living in someone else’s house. The control expected of 

homeownership was just not present. Property relations are power relations, and the 

freeholders held power over the leaseholders. In Scotland the situation was different. Flat 

owners were legally owners. However, depending on the particular deed provisions that 

applied to their particular flat, owners could find themselves subject to a great deal of 

disquiet, frustration and financial worry trying to work through ill-defined issues of control 

in relation to governance of the block with their neighbours. This ensured that, in common 

with flat ‘owners’ in England and Wales, Scottish flat owners found homeownership


expectations in relation to autonomy, personal independence and emotion security 

challenged. 

As a result, flats throughout Britain are perceived as a second-class type of 

homeownership, something to buy when working your way up the property ladder, but 

certainly not somewhere to stay long term. It is also the case that future flat owners in 

Scotland are often not made aware of the deficiencies in title deeds by the current 

conveyancing practices adopted by some solicitors. Scottish flat purchasers in general, and 

those purchasing through the Right to Buy in particular, have also not been made aware of 

their responsibilities in respect of governance matters when buying their flat (SCC, 2001). 

The directly comparable lack of a basic understanding about leasehold, displayed 

throughout England and Wales, as described previously, suggests that such conveyancing 

failings by purchasers’ solicitors are a feature of the home buying system throughout 

Britain. 

Reforming Property Law to Accommodate Owner Expectations 

Britain’s two distinct property law systems have only slowly shifted from their feudal 

foundations. Marked changes in power relations within society, and in particular the 

emergence of individual consumers with a strong attachment to the populist desire for 

homeownership, have brought significant pressures to bear on property law. As will be 

shown these pressures have ensured that the holding of flatted property better mirrors 

popular cultural expectations of homeownership in relation to exercising control over their 

living environment. The following section compares recent property law reforms in both 

England and Wales, and Scotland. In England and Wales the focus has been on trying to 

reform leasehold to better reflect the expected rights and responsibilities of individualised 

homeownership. In contrast, the focus in Scotland has been on trying to ensure the better 

operation of collective governance regimes within multi-owned buildings. Such reforms 

should enhance ontological security, more in line with the cultural expectations of 


The Abolition of Feudal Tenure (Scotland) Act 2001 was the core element of a threepart 

reform of Scotland’s property laws. This was the first major legislative task 

undertaken by the newly re-constituted Scottish Parliament. Abolishing feudal title 

demanded reform of title conditions, or ‘real burdens’, under the Title Conditions 

(Scotland) Act 2003 and with this in place the common law could be reformed under the 

Tenement (Scotland) Act 2004. With each of these Acts now passed, feudal tenure was 

finally abolished on the 28 November 2004. 

A prime intention of title conditions reform was to ensure that the system of land 

ownership become more transparent, so that title conditions—or ‘real burdens’—and any 

accompanying rights of enforcement, are clearly identified within the properties title. This 

also ties into on-going reforms of Scotland’s Land Registry procedures, so in the future 

property purchasers will be better placed to see exactly what they are buying into. 

Under the Title Conditions Act all ‘feudal burdens’—those created to advantage the 

original landowner and required to be adhered to by the original and any subsequent 

vassals—were abolished. From now on only ‘real burdens’, the enabling and constraining 

obligations of ownership must relate solely to the real estate matters, that is they must run 

with the land. The Act also introduces what are termed ‘community burdens’ which will 

apply to any facility that is shared between owners, such as a roof and rainwater pipes in


a tenement. It is suggested that such ‘community burdens’ are linked to a Model 

Management Scheme. There is also an implied suggestion that a property manager be 

employed to operate such a management scheme. Unfortunately, as the management 

scheme involves establishing a body corporate, which is not a devolved matter, a detailed 

schedule as to how such a body would be constituted has yet to be produced. Further, the 

model will not be a statutory requirement for all new flats, rather it will be optional with 

developers left to decide whether to adopt this model, vary it or ignore it completely. 

Ensuring clarity in relation to title deeds was one ambition. The other was to set in place 

some means of ensuring inoperable or redundant title conditions can be revised or 

removed. This was seen as one means of addressing some of the disquiet, frustration and 

financial repercussions of trying to work with limited, or inadequate title conditions. Both 

the wording of the ‘real burden’ and the associated rights of enforcement are critical to 

achieving the objectives set by the original developer. Equally as important is whether 

these objectives still have relevance today and, if not, how such burdens can be revised. In 

future, majority voting for the reform of title conditions will be permitted, as a means of 

tidying up inoperable or mis-drafted title deeds. There is also a provision for a majority 

decision to dismiss a property manager, so that current owners rather than the original 

developer decide who manages their property. 

The principal objective set for the Tenement (Scotland) Act 2004 was to reform the 

basic common law system that governs both the ownership and subsequent management of 

various shared elements within a tenement building. As with the previous common law, 

this statutory default position only applies where title deed provisions are silent. In all 

other cases, title provisions will continue to take precedence, even when the default 

position would represent a marked improvement on the title deed provisions. The key 

consideration is to ensure that existing contractual arrangements are not undermined, as 

this would affect an individual’s existing property rights and be open to challenge under 

the European Convention on Human Rights. As a result the greatest impact of these 

reforms will be on properties with either limited or incomplete title deed provisions. 

Finally, through defining shared elements as ‘scheme property’, the Act effectively 

reforms the principle of ‘common interest’. Ownership within tenement property is still 

confirmed as being individualised, not collective. Therefore, ‘scheme property’ signifies 

shared responsibilities, but not shared or common ownership. This is because under Scots 

law, common ownership would demand unanimity in decision making between all 

owners, something that is very difficult to achieve. That also explains why the basic 

decision-making system provided for under the revised common law allows for decisions 

to proceed on a simple majority. 

While these reforms do go some way to improving the ability of flat owners to better 

control governance matters within the common elements of the building, they are very much 

incremental changes that allow for more appropriate title revisions to be made. It will also be 

interesting to see how many owners are both willing and able to revise inoperable or 

redundant deed conditions. However, these reforms do not seek to challenge the fact that 

infinite variety in relation to title deed provisions will continue. While the basic provisions 

in the new Law of the Tenement could be incorporated into future title deed provisions, this 

is unlikely to happen. Solicitors will continue to draft title deeds specific to a development 

on the instructions of the developer. While revising the title deeds for existing flatted 

property may be problematic, given their existing ownership rights and responsibilities, 

allowing this approach to continue in relation to future flatted developments, which


represents a significant proportion of new build private housing in Scotland, runs counter to 

the codified approach which characterises similar arrangements in other countries. It is also 

in marked contrast to the reform agenda pursued in England and Wales. 

Given the deep felt concerns about how leasehold operated in relation to private flats, a 

campaign for reform gained pace throughout the 1980s. The James Report (HMSO, 1982) 

gave detailed evidence that leaseholders in flats were victims of landlords keen to exploit 

their monopoly position in relation to management and maintenance. This recommended 

that leaseholders be given the right of first refusal, termed ‘pre-emption’, when the 

freehold of their block was put up for sale. The Conservative Government responded by 

setting up the Nugee Committee, in 1984, with a remit to investigate management 

problems in leasehold flats (HMSO, 1985). This reported that the growing availability of 

loan finance and inflating property prices, the two being closely related, encouraged 

speculative trading in the freehold of blocks with the sole intention of profiting through the 

selling into leasehold expired controlled rental tenancies (Hamnett & Randolph, 1988). As 

a means to control speculative trading of freeholds, the committee recommended a right of 

pre-emption for the affected leaseholders. 

The resulting Landlord and Tenant Act 1987 gave leaseholders, under certain 

circumstances, this right over the freehold sale of their block of flats. If the landlord sold to 

another party, without offering it to the leaseholders collectively at the same price, the 

freehold could be bought from the new freeholder for the same price. Further, in cases of 

sustained mismanagement, leaseholders could compulsorily purchase the freehold 

interest, although this power has rarely been applied due to its legal complexities (Sopp 

et al., 1992). It was also the case that pre-emptive purchase was largely thwarted by legal 

loopholes as well as the financial, managerial and legal pressures that could be exerted by 

freeholders (Sopp et al., 1992). The influence of freeholders, and particularly those of the 

large London estates, traditionally a very powerful group in England, contributed to the 

slow, if almost grudging, pace of reform, given their strong representation in the hereditary 

House of Lords, the second and refining chamber of the British Parliament. 

As a result of the limiting effects of these legal complexities, combined with continued 

concerns about freeholder abuses, well articulated by a highly politicised campaign, 

another set of reforms emerged. The Leasehold Reform, Housing and Urban Development 

Act 1993 contained two major provisions. First, it introduced the right for long 

leaseholders, as a group, to buy their freehold through ‘collective enfranchisement’. 

Second, all leaseholders who satisfied a set of defined criteria, and who had occupied their 

flat as sole or principal residence, were given an individual right of lease renewal. But 

again these reforms proved difficult to enact with few leaseholders pursuing 

enfranchisement (Cole & Robinson, 2000). The Housing Act 1996 then quickly followed, 

allowing leaseholders to challenge major building works before they began. It also offered 

protection from foreclosure where service and management costs were disputed. 

Through these various legislative amendments, successive Conservative Governments 

gave a wide variety of protections to long leaseholders, trying to ensure enhanced 

opportunities to become homeowners, through the freehold purchase of their property, 

while at the same time increasing collective leaseholder control over the activities of 

freeholders. These measures included: 

. the right to enfranchise (purchase the freehold) under certain specified 

circumstances;


. rights to information about the freeholder and about service charges, insurance 

and related matters; 

. obligations on the freeholder to hold service charge and sinking fund 

contributions in trust; 

. leaseholder rights to challenge before an independent Leasehold Valuation 

Tribunal (LVT) the reasonableness of service charges and insurance premiums; 

. a right to ask the LVT to appoint a new manager where a freeholder was found to 

be in breach of their obligations; 

. rights to be consulted about major works and the selection of contractors, and the 

employment of a managing agent; 

. a right to have a management audit carried out; 

. an additional right of compulsory purchase of the freehold, on more favourable 

terms, if the freeholder is in persistent default of their obligations (DETR, 1998). 

But taken as a whole these reforms still proved insufficient and a further set of reforms 

followed under the New Labour Government through the Commonhold and Leasehold 

Reform Act 2001. Under these provisions leaseholders were provided with an easier 

route to enfranchise. Second, a new ‘Right to Manage’ was established, allowing 

leaseholders to take over the direct management of their homes, whether or not the 

freeholder agreed. However, little thought was given to what happens after the 

leaseholders had exercised these rights, for the legislation did not include a replacement 

governance system. As a result, leaseholders, on buying out their freehold, could quickly 

find themselves mirroring the Scottish situation whereby individual flat owners try to 

ensure good governance despite there often being no proper decision making or funding 

mechanism in place. 

Freeholder interests over time have been forced to yield. Arguably, these reforms could 

be considered as a private variant of the Right to Buy, in that freeholders have effectively 

lost the ownership rights of their property to their tenants. As a result one of Britain’s 

richest men, the Duke of Westminster, freeholder of the Westminster Estates and life-long 

Conservative Party supporter and benefactor, resigned from the party. Given this change it 

is perhaps appropriate to repeat the Davis (1948, p. 454) observation that, “Property 

relations are relations of power between people”. Clearly power relations within Britain 

have changed. 

Yet despite all these reforms, involving since 1967 five separate Acts of Parliament, two 

Parliamentary Committees of inquiry and a handful of Law Commission, DoE, DETR and 

Lord Chancellor’s consultation exercises, the homeownership aspirations of leaseholders 

of flats could still not be accommodated. None of this legislation proved capable of 

delivering what leaseholders really demanded, the ownership rights and associated control 

of personal space that were core to British culture notions of homeownership. 

After 30 years of ongoing reform most people recognised that this ‘ownership’ system 

was fundamentally flawed (Cole & Smith, 1994). Each piece of reform merely added 

further to the already extremely complicated and confusing body of English and Welsh 

landlord-tenant law. Few solicitors or barristers fully understand the intricacies of the law, 

and even fewer leaseholders. In essence leasehold, as a form of property holding for flats, 

has proved to be unstable in the long term. As a result, it has been subject to almost 

continuous reform, much of which was misplaced (Bright, 1992; Cole & Robinson, 2002; 

Greenish, 1994). Eventually it was decided that the only way to meet homeowner


aspirations for flats was to establish an entirely new form of property ownership, 

commonhold, which is considered in greater detail below. 

A Commonhold Solution 

As has been shown, the rights, obligations and responsibilities of flat ownership are 

markedly different to those associated with house ownership. Flats are physically and 

financially inter-dependent. They share common elements such as entrances, hallways, 

stairwells, structural walls, the roof and communal gardens. As a consequence, the actions, 

or inaction, of one or more owners can impinge directly on the safety and security of a 

neighbour’s property, impacting on their social well being, their sense of ontological 

security. So to ensure the proper functioning of this type of housing, in the interests of all 

owners, there is a need to prescribe rights and responsibilities that cover both the 

individual ownership and collective governance of such property. 

The British approach to accommodating individual ownership and collective 

governance within such multi-ownership structures is in stark contrast to that adopted 

by other countries (Bailey & Robertson, 1997). Rather than persist with pre-existing 

property ownership arrangements, other countries set down new legal arrangements that 

acknowledge both the individual and collective aspects of ownership within flats, and 

other types of multi-owned housing. 

Under such arrangements individual ownership of the flat, or unit, carries with it an 

obligation to be a member of an owners’ association which either owns, or has the 

responsibility for, the governance of the building’s common elements. Legal statutes and 

associated regulations set down the associated rights and responsibilities of the owners, 

and provide for a standardised organisational structure. Consumer rights have played an 

important role in the framing of this distinct tenure form (Robertson & Rosenberry, 2001). 

Given the obvious and continuing failings of the leasehold system in England and 

Wales, in 1996 the then Conservative Government decided to create an entirely new form 

of property ownership, namely, commonhold. Unfortunately the draft Bill was considered 

by general consensus to be just too complicated. The incoming Labour Government, 

committed to radically changing flat ownership (Labour Party, 1997), picked up this issue 

and attached it to a further batch of leasehold reforms, as previously discussed. After 

extensive consultation, commonhold was introduced as part of the Leasehold and 

Commonhold Reform Act 2002 and became operable from September 2004. 

Commonhold will apply predominately to newly-built structures, or buildings 

converted from other uses, such as warehouses into flats. That said, given the flexibility 

in the definition of commonhold, it can equally encompass office buildings, shopping 

centres and parking lots. Unlike the situation in other countries with similar systems, all 

new flatted development will not require to be commonhold. Rather, developers are still 

free to adopt a freehold / leasehold arrangement. 

Within a commonhold community the unit owner will have two distinct interests in the 

property: a freehold interest in the unit, and a membership interest in the association that 

owns and manages the common parts. The commonhold association, a private company 

limited by guarantee, will be governed by a board of directors directly elected from the 

unit members. Commonhold Associations will require to be registered at Companies 

House, using a standard set of memoranda and articles of association. It will also be 

a requirement that the Land Registry will have to register associations, on presentation of


their memoranda and articles of association and commonhold community statement, 

which details the rules of the commonhold. After all the appropriate documents 

are registered, the commonhold community comes into being once the first unit is 

conveyed. 

The Act details how to set up and manage a commonhold development. It defines both 

the units and common parts, setting down who is responsible for what in terms of 

maintenance, and crucially how that is to be paid for. To ensure the association maintains 

the common parts, it must assess expenditure and set an income that is collected via 

commonhold assessments, similar to service charges. On occasion, when assessments may 

not be sufficient to cover unforeseen cost, the Act allows the association to borrow money 

on the income to be accumulated from assessments. The association also has an obligation 

to insure the property. The Act also discusses what happens if there is a loss that cannot be 

covered by insurance. 

In addition to the obligations to maintain and insure the common property, the 

association also has an obligation to govern the community. This means that it will have 

responsibility for enforcing covenants, or restrictions that constitute the development’s 

governance regime. Interestingly, the Act recognises that it may not always be in the best 

interests of the community to have all governance covenants literally enforced and does 

permit the association some leeway in interpreting and enforcing covenants. 

The Act and associated regulations have tried to ensure there will be a high level of 

consistency across all commonhold developments. There is also to be an ombudsman 

scheme to which commonhold disputes may be referred. Overall, this Act effectively 

creates a system of ownership not dissimilar to that which exists in individual states in both 

Australia and the United States. While commonhold will not eliminate all the problems 

created when more than one owner owns an interest in property, it does address the core 

issue of ownership and sets in place a defined system of governance to control both private 

and public space. That said, it is likely to throw up other issues, such as disputes between 

owners and the Commonhold Association, and between the Association itself and property 

managers. Commonhold is, after all, an entirely new form of property ownership, and does 

not conform to our culturally framed notions of homeownership. 

Conclusion 

Within Britain the notion of individual homeownership is culturally engrained, with its 

expectations of exclusive rights of control that are core to ensuring psychological security 

and social well being. The popular understanding of what homeownership should consist 

of does not readily equate with private flats, where individual homeownership is coupled 

with collective responsibilities. British flat owners, as has been shown, are often unable to 

exercise proper control over the governance of the building in which they reside. In 

Scotland you can be a flat owner, but peculiarities with the title deed can deny you the 

collective means to control what happens with the governance of the building. In England 

and Wales, flat ‘owners’ are denied any say in such matters, because governance 

considerations are legally in the hands of the freeholder. Although leaseholders have no 

say in such matters they are expected to pay all the associated costs. The challenges to 

popular cultural expectations of homeownership are further compounded, within the 

English and Welsh context, given that a leaseholder is legally a tenant, rather than an 

owner. This has never been fully appreciated, nor accepted by flat ‘owners’.


Accommodating an individual consumer’s perspective within the British housing 

system has come late. Old powerful landholding interests have long been to the fore: the 

slow demise of feudal landholding provides a poignant illustration. With the recent 

advent of mass homeownership, these interests have come under pressure from property 

market professionals: the solicitors, surveyors, lenders and estate agents. While these 

professionals once acquiesced to the landholding interests, dramatic changes in the 

property market, reflecting broader changes in power relations within society, saw a 

realignment favouring homeowners. The recent reforms to leasehold legislation, which 

in the last 30 years has been the most legislated for sector of the housing market, records 

this change of allegiance. Cultural assumptions about what homeownership should 

constitute have been employed to drive forward this reform agenda, and in so doing, 

undermined long established landholding interests. The introduction of commonhold, an 

entirely new legal arrangement, is an acknowledgement that previous legal reforms to 

leasehold arrangements for flats were never able to meet the cultural expectations of 

‘homeowners’. 

Cultural expectations in respect of homeownership are also deeply embedded within the 

countries’ body politic, being equally articulated and pursued by the Conservative and 

Labour parties. Leasehold reform was an inevitable extension of the Conservatives’ 

evangelical mission to promote homeownership (Blandy & Robinson, 2001). Such 

enthusiasm lost them traditional backers, such as the Duke of Westminster, but by 

espousing the cultural rhetoric of homeownership, they were hardly in a strong position to 

resist the reform ambitions of leaseholders. At the same time, the homeowner, and the 

powerful financial interests that underpin the current housing market, were clearly a more 

valuable asset to a party engaged in reshaping its popular appeal. New Labour merely 

followed through on reforms already outlined by the Conservatives, given their parallel 

desire to capture the political allegiance of this significant and growing group. 

Previous legal arrangements, created to facilitate flat ‘ownership’ within Britain, 

ensured flats were not perceived as being as secure an investment as a house. Better to 

aspire to an individual detached property, where exclusive rights of control applied, and 

you are free to put your individual identity on your very own property. Perhaps this 

explains why the bungalow is perceived to be Britain’s most popular housing form, along 

with other detached properties, while flats were the least popular (Clover, 2002). 

Flat ownership requires an accommodation of the individual ownership of a flat, 

collective ownership of the common parts and the means to ensure the building’s proper 

governance. In England and Wales the advent of commonhold attempts to address this. 

The situation in Scotland differs, for although outright ownership of a flat has always been 

possible, problems with title deeds have resulted in highly variable governance regimes. 

Recent legal refinements do not radically alter this situation. These variations in the 

governance power, held by individual flat owners, will always be an illustration that 

owning a Scottish flat is different from owning a house. Scotland’s legal arrangements still 

fall short of the statutory systems adopted by most other countries. 

What is perhaps not obvious at present is that commonhold itself can never match the 

cultural expectations set for homeownership. That may explain why to date no 

commonhold development has been registered despite the legislation being in place. But 

then, individual ownership within a multi-owned structure can never meet such 

expectations, but it has been a key driver in explaining British property law reforms as it 

relates to flats.


Acknowledgements 

The paper draws directly from research work on private flat management systems funded by the Joseph Rowntree 

Foundation. An early draft of this paper was presented at the ENHR Conference in Vienna in 2002. The author 

would like to thank Dr Sarah Blandy, University of Sheffield, the Editors of the journal and the three anonymous 

referees for their constructive comments which enhanced and improved this paper. 

Notes 

1 The Scots term ‘factor’ refers to the position of landowner’s agent or estate manager. 

2 Private sheltered housing refers to owner-occupied properties, often built as flats with communal 

facilities and a warden service, which is specifically designed to cater for elderly residents. 

3 The common close is the communal entrance to the individual flats that houses the common stairs. 

4 The solum is the Scot’s term for the bare earth immediately below the building. 

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