- Please peruse ^^ the title of this question overhead ^^. I don't fathom the reason below for preferring a 999-year leasehold over a freehold, written by Nick Green on 20 June 2022.
There can also be specific advantages for flat owners to continue owning their flats under a leasehold structure. For example, flat owners can club together to buy the freehold on their block (see below) and then grant themselves 999 year leases. The long lease gives them all the same security as freehold, but will also set out the rights and responsibilities of the residents, such as funding the maintenance of the building and placing restrictions on antisocial behavior. This kind of arrangement combines the advantages of freehold with the few perks of leasehold.
If the flat owners are buying the freehold, then why doesn't their freehold ALONE empower them to fulfill their goals of their 999-year lease? To wit, why doesn't their freehold ON ITS OWN "set out the rights and responsibilities of the residents, such as funding the maintenance of the building and placing restrictions on antisocial behavior"? Why do they need a 999-year leasehold to "set out the rights and responsibilities of the residents, such as funding the maintenance of the building and placing restrictions on antisocial behavior"?
Why can't these flat owners, as freeholders, simply covenant these residents' responsibilities?
I quote Ben McFarlane, Nicholas Hopkins, Sarah Nield, Land Law Text, Cases, and Materials (5 edn 2021, Oxford University Press), 892.
2 A covenant is an agreement by deed and, as such, generally only enforceable between the parties—but restrictive covenants can be enforced by and against subsequent owners of the land to which they relate.
3 A restrictive covenant must: (i) relate to land; (ii) be intended to be enforceable against subsequent owners of the land; (iii) be capable of benefiting adjacent land; and (iv) be negative in nature.
I might have stumbled upon the answer to my own question? Op. cit. p 902
The covenant in Tulk v Moxhay had both negative and positive aspects: first, it called for keeping the land in an open state, i.e. it should not be built upon; and secondly, it called for the maintenance and repair of the land, although it was the negative obligation against building that was enforced.24In the later cases of Haywood v Brunswick Permanent Benefit Building Society25 and London and South West Railway v Gomm,26 the court made clear that it would only enforce negative obligations. Negative obligations restrain the owner of the servient land from acting in some way, whilst a positive obligation requires owners to put their hands in their pockets to fund some activity: for example, to maintain the land or repair some building upon it. [Emboldening mine]
There has been growing pressure to enforce positive land covenants, but the judiciary has firmly passed this particular buck to Parliament. In the following case, the House of Lords refused to overcome more than a century of orthodoxy.
Rhone v Stephens  2 AC 310 (HL)
Facts: Walford House was divided into two dwellings—a house and a cottage—in such a way that one of the cottage bedrooms lay under the roof of the house. Upon the sale of the cottage, the owner of the house covenanted with the purchaser to keep the roof in repair. Some years later, when the roof had fallen into disrepair, the owner of the cottage unsuccessfully brought action against the then owner of the house: a successor in title to the original covenantor.
24 In Morland v Cook (1868) LR 6 Eq 252 and Cooke v Chilcott (1876) 3 Ch D 694, positive obligations were enforced.
See Bell, ‘Tulk v Moxhay Revisited’  Conv 55; Griffiths, ‘Tulk v Moxhay Reclarified’  Conv 29.
25 (1881) 8 QBD 403. 26 (1882) 20 Ch D 562.
This post is getting lengthy, so I shall stop the quotation here.