HC 1652 Communities and Local Government CommitteeWritten submission from Professors Tony Crook and Peter Kemp

Executive Summary

The ownership of the private rented sector remains dominated by small scale individual landlords.

Government attempts to attract institutional funding have not yet been successful and substantial barriers to attracting it remain in place.

The current economic and housing market climate increases the prospects of achieving more institutional investment but changes to the tax arrangements are needed to overcome the remaining barriers.

Introduction: Background to our Submission

The Committee asks how long-term private finance, especially from large financial institutions, could be brought into the private and social rented sectors, and what the barriers are to that happening. Our submission is focused on the question of whether financial institutions are likely to invest in private rented housing.

The basis for our response is the evidence we have gathered over the last three decades on the transformation of private landlords in England, including since rent deregulation and specifically on the impact of attempts to create a more “modern” form of landlordism and to attract financial institutions to invest in the sector. In relation to the latter we have monitored and evaluated two government initiatives to attract more corporate landlords and institutional funding: the Business Expansion Scheme (BES) and the Housing Investment Trust (HITs) scheme. We have also examined the attempts to create residential REITs. Our work has been widely disseminated and we have been regularly involved in policy briefings and discussions. Our most recent joint publication brings much of this work together1 and it is on this evidence base that we are submitting our memorandum.

The rationale and impact of government initiatives to attract financial institutions to the private rented sector

Throughout the developed world, the supply of private rented dwellings is largely a “cottage industry”. The British experience is thus part of a global phenomenon. A very large proportion of the sector in Britain is owned by private individuals, each with small portfolios with many managed and maintained in their landlords’ own spare time and not by managing agents. There are very few large residential property companies. Moreover, only a small proportion of the dwellings in the sector are owned or managed by those with relevant professional qualifications or belonging to trade and similar organisations which require their members to comply with specific standards and codes of conduct when managing property.

Over the last three decades, Governments in Britain have been keen to see an increase in company ownership and institutional investment. This, they hoped, would secure long term investment, reinforce the sector’s improving reputation, achieve economies of scale and spread risk better than small scale individuals, foster longer term tenancies since institutions seek a long, not short term, presence in the market, bring newly built properties into the sector, and “smart” make regulation easier and more effective.

To achieve these objectives, governments have pursued a range of initiatives to encourage new investment by companies and by financial institutions. However, instead of designing these with the specific needs of private renting in mind, governments (i) adapted existing schemes designed for other purposes and (ii) did not address the fundamental barriers preventing the emergence of larger companies and institutional investment.

Thus although the Business Expansion Scheme (BES)—which was extended to private renting between 1988 and 1993 and designed to “kick start” new individual investment in shares in new private renting companies—initially resulted in 900 being created and 80,000 dwellings coming into the sector, it had only a short-term effect. This was partly because the returns being earned were not competitive. It was also because the BES tax incentives encouraged short term investment. Few of the BES companies lasted beyond a few years, with many of their dwellings being sold off and moving into other tenures when the companies were disbanded.

The subsequent initiative, to create Housing Investment Trusts (HITs) in 1996 did not succeed in creating a single one. It was designed to overcome some of the taxation barriers to institutional investment in private renting by creating tax transparency. Financial institutions were at that time not keen to be the direct owners of private rented dwellings but if pension and other gross funds instead invested indirectly through a property company or other vehicle they would suffer a tax loss compared with direct ownership. HITs only partially addressed this problem since they would have paid only a lower rate of corporation tax and no capital gains tax. But despite many efforts to launch HITs none succeeded. Returns were not competitive (despite the tax arrangements), it was hard for putative HITs to find the dwelling stock they needed for the minimum scale of investment required, housing management services were hard to find and complex rules within the HITs structure and stock exchange listing rules made it difficult to get one underway.

The subsequent Real Estate Investment Trust (REIT) initiative (from 2007 onwards) created the possibility of fully tax transparent residential REITs, notionally able to attract pension and life funds to invest without a tax loss for them. However, to date this has not resulted in even one residential REIT being established, although the great majority of commercial property companies have now converted to REIT status. This is partly because, despite the initial impetus to forming REITs being based on the desire to get institutional funds into the private rented sector, the initiative became transformed into one addressing investment in all property not just in private residential property. Thus the rules were designed to ensure, inter alia that such conversions did not come at the price of a big tax loss for the UK government. Moreover the Homes and Communities Agency’s Private Rented Sector Initiative (PRSI) does not appear to have overcome the remaining barriers to institutional investment (which we discuss in the next section) despite the incentives the HCA offered potential investors

What has happened instead of the hoped for injection of institutional investment and the formation of new residential property companies is that the proportion of the sector owned by individuals with small portfolios has grown. The “buy to let” phenomenon has dominated new investment and, until the current economic crisis, growing numbers of individuals have entered the sector seeking capital gains, not long term rental income returns, managing small portfolios in their own spare time and raising debt funding on competitive terms (in contrast to the period before rent deregulation when debt funding for private landlords was hard to find and expensive). Some new companies have been established but in the form of limited partnerships or property unit trusts with limited shareholder liquidity (often registered off shore for tax purposes) and serving niche markets, for example student housing (the latter involving companies such as Unite and Opal).

Current Barriers to Institutional Investment in the Private Rented Sector

Our research evidence suggests that the barriers to attracting and retaining long term institutional investment into the private rented sector today are threefold:

First, the stock required to match institutions’ needs, both in terms of “lot size” and quality (sizeable tranches of good quality newly built stock in desirable locations with good quality local management)s initiative and has been hard to find for those considering setting up funds—and the search for it takes much time (although the current depressed state of the housing market may generate opportunities for deals with house-builders).

Second, current income returns (ie net rents as a percentage of vacant possession capital values) are not attractive to potential equity funders. This is partly because rents are set in a market where the supply side of the sector is dominated by small scale individual landlords putting in their own spare time to manage portfolios and looking primarily for capital gains and not income returns. Whilst the house price boom up to 2007 delivered substantial total returns it did not produce the income returns desired by institutions (income returns fell as capital values rose), not the least given the potential novelty of this asset class.

Third, whilst the REIT legislation has removed one of the taxation impediments to attracting institutional funding by fostering tax transparency (important because gross funds do not wish to own residential property directly) other tax impediments remain, including the burden of stamp duty land tax on bulk purchases, VAT payments to property managers, and some of the REIT rules that act as a barrier to establishing, nurturing, and “growing” new residential REITs. The SDLT barrier has now been addressed in Budget 2011 but VAT remains a problem as, unlike commercial property, residential lettings require active and costly management. Some of the REIT rules also remain problems but these would be helpfully addressed if the proposed measures in the recent Treasury consultation are enacted.2

As a result there has not (yet) been the scale of investment that governments have been seeking, except in niche markets (like student housing with good covenants, often backed by universities), and through trusts, including with offshore tax arrangements, but with limited investor liquidity.

Current Prospects for Attracting Institutional Investment

Our submission is based on our assessment of the extent to which the barriers we have identified can be overcome. We do not expect institutional investment to ever be a substantial part of the private rented sector (and nor is it in most other advanced economies) but it could play a useful role in attracting more long term investment. Residential lettings should in principle be attractive to institutions. Over the long-run, like house prices, market rents rise in line with earnings, thereby matching the liabilities of many potential investors. Demand for private renting is likely to rise rather than fall and many house-builders will be looking for new outlets now that the first time buyer market has become difficult and many housing associations are likely to commission or purchase fewer new dwellings under the new subsidy arrangements. And with stable or even falling nominal house prices and increasing rents there is every prospect of income returns rising (in contrast to the period during the “buy to let” boom). It would thus be, in our view, a propitious moment to remove the residual barriers to institutional investment, subject to value for money.

One of the key findings of our work on HITs and REITs is that the legislation gave very little recognition to the need to nurture new companies during their birth and incubation period as it takes time to build up a good portfolio (to find and purchase good performing property etc etc.) and convince potential investors of the returns. One of the key factors behind the failure of any HIT to be formed was the way the rules surrounding it prevented this incubation. So too do the current REIT rules. Unless these are changed our evidence suggests that significant barriers to forming new residential property companies under the REIT rules will remain in place

We would thus recommend:

(1)Changing the diverse ownership rule This would make it possible to launch of a residential REIT with a limited number of founding shareholders eg pension and life funds. It will enable them to establish a REIT, to prove its success and then draw in more shareholders. This is crucial in our view to getting residential REITs off the ground.

(2)Allowing a fixed grace period for REITs to meet non close company requirements. As we have already observed, it takes time to establish a fully fledged residential property company. We think it would take up to five years to acquire well working and profitable portfolios. At that stage such REITs would be in a position to draw in other shareholders who at that stage will not see (as they would at “launch”) a novel and untested proposition. This is a crucial step to setting up “incubator” REITs.

(3)Relaxing Stock Exchange listing requirements. These rules were a major barrier to getting HITs established, not the least because the listing rules imposed meant that any HIT would have had difficulty in getting itself established. In our view, we need to nurture new small REITs which can then grow and eventually be listed. If new REITs can avoid complying with the limitations arising from listing and its administration costs, they can concentrate on acquiring and managing a profitable portfolio and making attractive investment returns, then seek a listing.

(4)Abolish conversion charges. The conversion charge was a sensible arrangement in relation to the conversion of commercial property companies but not for nascent residential REITs. In any case, there is really only one large scale residential property company in Britain and this has a trading, not an investment, model. If this requirement was waived for residential REITs it would encourage both the (i) new entrants that are needed and (ii) off-shore residential funds to return to the UK and contribute to its tax base. New residential REITs could also scale up by acquiring the (admittedly) small number of residential property companies without the charge inhibiting them from achieving scale economies (needed to get their housing management costs down). It might also allow banks to offload repossessed property held in separate vehicles, again which could be helpful in achieving scale for new REITs.

(5)Cash should be permitted for an initial period of years as a good asset for the REIT balance sheet test. It takes time to acquire a working portfolio and the inability to hold cash for a period whilst portfolios were built up was a major inhibitor in the establishment of HITs. Hence this amendment would allow REITs to judiciously assemble a good portfolio without being forced to spend it quickly (and less judiciously) in order to ensure their balance sheet was comprised largely of physical and not financial assets. After the “incubation” period the current limit could be re-imposed, case by case.

(6)Change the tax arrangements which treat the selling and buying of residential property as a trading and not as an investment activity. This arrangement inhibits landlords operating as “normal” property companies. The latter are constantly adjusting their portfolios, disposing of properties that do not “perform” and replacing them with those that do. Taxing the gains from such disposals inhibits the development of well performing portfolios. It is important to encourage this portfolio adjustment behaviour for several reasons. First, it prevents the growth of some “mid range” landlords with 20 to 40 dwellings in their portfolios and low levels of gearing (unlike the new “buy to let” landlords of the “noughties” who are heavily geared) and who have on evidence an appetite to grow using their own equity. Second, because it prevents the growth of these companies it rules out the development of well run and performing medium sized companies whose acquisition could be the basis for the formation of the first REITs.

Conclusions

So are there now any prospects at all of achieving the desired outcome? There are encouraging signs. On the tax front SDLT will only be levied on the average price of a dwelling in portfolio transactions. In addition the recent HM Treasury proposals to amend the detailed rules applying to new REITs should allow them time to get established before the full rules apply. And if they are allowed time to get underway the current state of the property market may at last make it possible for emerging REITs to find the stock they need. Builders are working in a difficult market: the first time buyer market is declining and housing associations face a more austere grants regime so their demand for new building may fall. Building to let privately in association with REITs would give house-builders a new outlet for their stock at a time when demand from first-time buyers is depressed and likely to remain so for some time. But although it is never likely to replace or even overtake supply by private individuals, if it comes to pass it will provide an important new ingredient to supply. If anything this is a more propitious time than any in the last three decades for the objective of stimulating institutional investment to be achieved.

In summary, our research and evaluation suggests that, while the 2011 Budget proposals on Stamp Duty Land Tax represent an important step towards making residential REITs an attractive proposition for financial institutions, additional amendments will be required if this important policy goal is to be achieved.

October 2011

1 Crook, Tony & Kemp, Peter A (2010), Transforming Private Landlords, Oxford, Wiley Blackwell.

2 Her Majesty’s Treasury (2011) “Informal consultation on REITs” London, HM Treasury.

Prepared 1st May 2012