Welcome to TLT's busy lenders' monthly round-up. Each month we summarise the latest news and developments in mortgage litigation and regulation.
In April 2014 the mortgage market suffered a jolt with tougher affordability assessments. This prevented a raft of borrowers from moving away from their existing lenders.
Lenders could avoid the new regulations, provided the borrower's mortgage balance did not increase.
The MCD (the majority of which was implemented on 21 March 2016) scrapped the transitional rules.
Brokers have commented they do not anticipate change in the market as a result of the MCD. It seems as though the majority of lenders were unwilling/unable to underwrite mortgages on the basis of the transitional rules in any event.
The majority of lenders are expected to continue to offer rate switches, without the need to assess affordability, as the MCD rules take hold. These products are, currently, only generally available directly. This is an interesting limitation, given the MCD's requirement for brokers to share responsibility for ensuring affordability.
With an ageing population, the issue of affordability into retirement will be ongoing. This sharpens the FCA's focus on aging borrowers, which is fast becoming one of the hotter topics in retail lending.
The UK mortgage market continues to grow, with gross lending reaching £17.6 billion in February – the greatest amount of cumulative lending for a February since 2008.
The Council of Mortgage Lenders (CML), who provides data on gross mortgage lending, observed this increase represents growth of 30% when benchmarked against February 2015.
Mohammad Jamei, economist at the CML, points to a variety of factors underpinning growth in the mortgage market, including ‘solid’ market fundamentals, falling unemployment and growth in real-term wages. Competitive mortgage deals and Government schemes have added further buoyancy.
There is further cause for encouragement as the Royal Institute of Chartered Surveyors has indicated there has been a "modest increase" in the number of properties coming onto the market, easing a recent lack of supply.
However, the good news is not unfettered as Jamei cautions, "the market has limited upside potential over the near term."
To assist in completion of the Land Register, the General Register of Sasine in Scotland closed to standard securities on 1 April 2016.
The change will affect those property owners still on the Sasines register. This means those wishing to remortgage with a new lender, or looking to secure an additional loan on their existing property, will have to voluntarily register onto the Land Register, thereby triggering a first registration.
There will be considerable cost implications arising from this new rule. Whilst the fee for voluntary registration has been waived, the legal costs involved in preparing first registrations will remain. This is likely to impact mortgage lenders, particularly those who offer fee free remortgages. These products are generally advanced without the borrower requiring legal representation. The lender's solicitors usually complete all the legal work, thus bearing the legal costs. The requirement of first registration means the lender will have to make a decision on who will bear this additional cost – the customer or the lender.
The rule has been implemented to consolidate all registers into one for all land and property ownership in Scotland. This will provide clarity and allow a greater security of land ownership.
The MCD was implemented by the UK on 21 March 2016, and seeks to harmonise regulation of mortgage markets across the EU. It mainly applies to credit agreements secured against residential property and covers both first and subsequent residential charge mortgages.
Transposition has resulted in some key changes to the FCA's Mortgages and Home Finance Conduct of Business sourcebook (MCOB). Lenders should ensure they are aware of the following key changes:
Second Charge Mortgages
The MCD brings certain subsequent charge mortgages under MCOB which previously fell under the consumer credit regime. Further changes will take place in 2017 for first charges regulated by the Consumer Credit Act 1974.
Lenders must provide pre-contractual information to borrowers through a European Standardised Information Sheet (ESIS), which is designed to help consumers compare products. The ESIS replaces the current 'key-facts illustration' (KFI) which UK lenders are required to supply to customers, and will require lenders to update their systems and processes.
The content of the ESIS and KFI are similar, but the ESIS contains some additional information, such as an illustration of the impact of changes in exchange rates for foreign currency loans.
The triggers for providing an ESIS are the same as for a KFI. At the latest, the ESIS must be provided at the time a binding offer is made.
UK lenders have until 21 March 2019 to use the ESIS. To take advantage of this, "top-up" disclosures must be provided with the KFI to cover the additional requirements within the MCD.
Pre-sale disclosure obligations
Lenders must provide an adequate explanation of the essential features of the product, any ancillary products and the impact on the consumer. These requirements should not require major changes to advised sales but will have a greater impact for execution-only sales. Firms must also make general information about mortgages available to consumers. This can be done by publication on their website.
Conditional and binding offers
The MCD requires lenders to make a binding, unconditional mortgage offer. This will be a new step for most lenders, who will commonly make conditional offers.
In practice, lenders can still make a conditional offer and carry out checks. Once due diligence has been completed, the offer must be made binding.
The binding offer triggers a compulsory seven day pre-sale reflection period, during which the consumer can reflect on whether to enter into the mortgage. The consumer can accept the offer at any point during the consideration period.
Annual Percentage Rate of Charge (ARPC)
For all loans, the APRC must now be disclosed in the ESIS.
Where the borrowing rate is variable, the MCD introduces an additional ARPC which must be provided to consumers in a representative example within the ESIS. If the borrowing rate tracks an external reference rate, the second ARPC must use a 20 year high of that reference rate. In other circumstances the FCA will set a benchmark rate for a firm to use.
Financial promotions and advertising
The FCA has used the implementation of the MCD to simplify and strengthen its rules on advertising and financial promotions.
The MCD introduces a requirement for firms to provide a full representative example of mortgage costs if their advertising mentions an interest rate or anything to do with the cost of the loan (such as the monthly amount).
At the beginning of 2015, the ECB announced a programme of quantitative easing (QE), aimed at stimulating the Eurozone economy and preventing deflation. On 10 March 2016, the ECB announced it will increase the value of assets it purchases from €60 billion to €80 billion per month.
With a view to increasing banks' lending, the ECB will provide long-term funding to banks at low or negative interest rates. This will help offset the move further towards negative rates the ECB will pay on deposits (currently -0.4%).
The ECB will also extend its QE programme to purchase corporate bonds in addition to government bonds. It is hoped this will improve access to funding for businesses through the bond market.
The resulting lending stimulus, without squeezing banks’ profits, should be welcome news.
The QE programme is currently due to run until March 2017.
The key points are:
Offshore developers targeted
Capital Gains tax (CGT) cut, with an exception
Buy-to-let (BTL) stamp duty increase
Commercial stamp duty reform
Help for home building
The Chancellor's new LISA, which will come into force next April, has two purposes. Firstly, to assist first time buyers to save for ownership deposit (the same purpose as the Help to buy ISA). Secondly, the ISA may be used in retirement.
For every £4 invested in a LISA, the government will contribute £1. The maximum investment of £4,000 per year would result in the state contributing £1,000. The LISA is limited to one person aged between 18 and 40, so two first time buyers buying together can each receive the bonus. In a five year period, two people saving for their first home together could supplement their savings by up to £10,000.
Whilst it is not impossible to beat the return (data shows investment in the UK stock market provides an average return of 5%), the LISA eradicates market risk and the additional 25% government bonus makes it potentially attractive. Savers will also be able to contribute the remainder of their allowance (£16,000 from April 2017) in other ISAs.
In addition, the LISA offers increased flexibility as it can be applied to purchases up to £450,000, whereas the Help to buy ISA is restricted to purchases of £450,000 in London and £250,000 elsewhere.
One downside is the 5% exit fee, applied if the LISA is not used for either of the intended purposes (home ownership or retirement).
By comparison, the maximum you can save in a Help to buy ISA is £2,400 per year (£3,400 in the first year). For every £200 (the maximum monthly investment) saved into a Help to buy ISA, the government will contribute £50. However, the state's contribution is limited to £3,000. Consequently, the maximum annual bonus is £850, compared with the LISA's £1,000.
However, unlike the LISA, there are no exit fees if the savings are not put towards a first home.
Housing demand already outstrips supply in many parts of the UK, so this initiative could exacerbate this. The Help to Buy ISA is considered to have increased house prices. It is thought the LISA could increase house prices by 0.3%. Given the average house price last month was £190,275 (according the Land Registry), a 0.3% increase would only add an additional £570.83. For the moment, it appears as though the LISA bonus will exceed any house price rises it causes.
The most recent Budget has, amongst other things, been referred to as an "outright assault" on the buy-to-let (BTL) sector. All non-corporate buyers of additional residential property, beyond a main residence, are now subject to significant increases to stamp duty.
To compound this, from 2017, there will be limits to mortgage interest tax relief, meaning property developers/investors face increasing costs. Is this the end of the BTL market as we know it? Many commentators think not.
Long term investment in the sector should remain attractive, as the revenues and capital gains ought still to outweigh the additional costs. The impact of sustained demand for property and a well documented lack of supply, will also work to maintain momentum.
So what of the boom? The Council of Mortgage Lenders recorded an eight year high in mortgage borrowing for February 2016, topping £17.6billion. However, this is underpinned, not only by changes to stamp duty and tax relief, but also rising wages, the availability of more competitive mortgage products, as well as the age-old interplay between supply and demand.
That being said, the general consensus is BTL activity will fall after 1 April 2016. Some see this as a catalyst for banks to adapt their products in the BTL sector. Investors could increase use of special purpose vehicles (ie the use of registered companies specifically for the purpose of buying property).
Scanning the horizon, the Bank of England's Financial Policy Committee remains vigilant and continues to review borrowing limits within the BTL market. This will, inevitably, be a challenge to lenders when trying to create competitive mortgage products.
Smaller lenders are looking to the Chancellor to help promote competition in the banking sector.
The 2016 Budget contained a welcome development for challenger banks, with confirmation the Government will “pursue more proportionate capital requirements for small banks and building societies in the European Union”.
Competitor banks have argued the current capital adequacy regime, which applies to both small and large banks alike, is unfairly prohibitive to smaller lenders.
“It was good to hear George Osborne saying he would push Europe for a more proportionate treatment for the capital required for smaller banks,” said Paul Lynam, chief executive of Secure Trust Bank.
This news follows remarks in January by Andrew Bailey, chief executive of the Prudential Regulatory Authority, who said the regulator is “very focused” on helping challenger banks manage onerous capital adequacy requirements.
Following the divestiture of TSB from Lloyds Banking Group, the anticipation of the Williams & Glyn spin-out from the Royal Bank of Scotland, and with the Competition and Market Authority’s ongoing investigation into the retail banking sector, focus is sure to remain on challengers’ ability to get a foothold in the market.
On 14 March 2016 the HM Treasury and FCA published the final report on the Financial Advice Market Review (FAMR). The aim of the report is to improve the affordability and access to advice and guidance to people at all stages of their lives.
The recommendations are, in part, directed at the FCA, but some are directed towards service providers and consumers, and focus on three key areas:
The recommendations outline provisions for making advice to the mass market more cost effective and include:
Allowing firms to develop more streamlined advisory services.
Consumer engagement and lack of demand were seen to be holding back the development of the advice market. In order to tackle this, the following provisions have been recommended:
Liability and consumer redress
Many advisers have concerns about future liability, preventing them from providing advice.
Recognising this, and the need to maintain consumer confidence and provide access to redress, the report outlines the following provisions:
The report also calls for an amendment to legislation to narrow the definition of regulated advice, so it is based on personal recommendation. This would create a single definition for regulated financial advice and remove some of the barriers to providing guidance services.
Will these measures remove barriers to financial advice? Will lenders re-build their advisory team? We will have to wait and see.
The misconduct affecting LIBOR in the past has been well documented. Since then, significant measures have been put in place to restore the integrity of the benchmark.
One such measure is the consultation undertaken by ICE Benchmark Administration Ltd (IBA) and the subsequent publication of the roadmap on 18 March 2016.
The roadmap sets out reforms to reduce the risk profile of LIBOR, including:
It is believed the above measures will make it more difficult to manipulate LIBOR. This will, hopefully, reduce the risk to panel banks and attract more banks to the panel.
Whether the above measures will restore the faith in LIBOR, reduce the risk to panel banks and increase participation in the panel remains to be seen.
The credit card provider, NewDay, has announced it will refund over £4 million to 3% of its customers. The announcement follows disclosures made by NewDay to the Financial Conduct Authority (FCA) showing NewDay had imposed unfair charges.
In 2014, ahead of the FCA's Mortgage Market Review, NewDay conducted an independent business review looking at the fairness of its charging model. In some circumstances, default fees and other charges triggered unfair additional charges for consumers. For example, customers could incur additional fees as a result of delays in posting transactions.
NewDay disclosed this to the FCA and have proposed to make a series of changes to their charging model. As well as providing financial redress to affected customers, these changes include the removal of some circumstances in which default fees may be charged, and setting up tailored alerts to enable customers to make prompt payments. NewDay will be writing to affected customers within the next three months and in most cases customers will receive a credit on their account. The scheme will not cover customers who were charged before 1 April 2014, but any complaints made relating to events prior to this date will be considered on a case-by-case basis. NewDay will also be taking steps to contact historic customers.
The FCA has welcomed NewDay's approach and encouraged other firms to follow similar initiatives if they identify unfair overcharging policies.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.