The study had come about following the Office of Fair Trading investigations into the retirement housing sector.
One concerned the systematic cheating of pensioners over the Peverel / Cirrus collusive tendering racket (Dec 2013). The other investigation was into exit fees (Sept 2012), which concluded that they were potentially an unfair contract term.
As a result, several retirement housebuilders – McCarthy and Stone and Churchill among – dropped exit fees.
Rather than address abuses in the retirement housing, the Law Commission decided that its core purpose was to remove ambiguity over exit fees to help new housebuilders in the sector.
After extensive commercial lobbying, it decided that exit fees on resale of a retirement property were fine so long as they were transparent.
This would encourage investment in retirement by those housing providers who recoup (extra) profits on the resale of an asset by the original buyers.
They also mean that housebuilders, or freehold investors, can borrow against this future income stream.
There was absolutely no reason for the Law Commission to enter this controversial territory. Substantial exit fees already exist:
The Sunday Times reported Audley Retirement’s exit fees earlier this month, where a family paid £48,000 on sale.
Barchester Homes has exit fees of 10 per cent and 50 per cent of any uplift in value.
Plenty of smaller retirement village providers have the perfect storm of retirement housing fees: large exit fees; monopoly estate agency; vague admin charges; prohibition on subletting (disastrous for families already paying for a relative’s extra care).
These business models existed before the Law Commission decided to undermine the work already done by the Office of Fair Trading into the fairness of these fees.
In short, the primary purpose of the OFT was to protect pensioners; the primary purpose of the Law Commission report was to help housebuilders (and freehold investors) whose business models include high exit fees.
In return, consumers get a code of practice which means estate agents and others have to make these exit fees “transparent”.
That is major step backwards in terms of consumer protection compared with the OFT’s ruling on the potential of these fees to be unfair contract terms.
It also means, thanks to this pretty tokenistic effort, that the housebuilders and freeholders who abandoned or revised their exit fees when the OFT was asking questions, can now happily reintroduce them.
An alternative view of this report by the Elderly Accommodation Council can be read here: http://www.firststopcareadvice.org.uk/law-commission-event-fees-retirement-properties/#comment-19449