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Residential SDLT rules stipulate that where you buy a second property, you pay an additional 3% tax on top of the usual rate. This means that you could be paying between 5% and 15% tax depending on the value of the property. However, where you buy ‘non-residential’ property you only pay between 0% and 5% tax depending on the value of the property, regardless of whether this is your first or one hundredth property. This makes buying ‘non-residential’ properties an attractive venture.
Whilst it is often thought that ‘non-residential’ property means ‘commercial’ and only applies to shops or offices, this is not the case. In fact, the Finance Act 2003 makes it clear that ‘non-residential’ simply means properties which are not inhabitable for residential purposes.
Previously, this meant that run down properties, which had to be redeveloped to be ‘habitable’, fell into this bracket. This caused interest in these properties to increase for the purposes of buying, redeveloping and selling whilst avoiding higher rates of SDLT.
Effectively, there was a ‘loophole’ which many developers have been taking advantage of. However, HMRC have now effectively closed this loophole.
In this case, the claimant purchased a property which was badly damaged by asbestos and which could not be inhabited safely by anyone. It had to be demolished and rebuilt in its entirety. In this situation, it was decided that this satisfied the meaning of ‘uninhabitable’.
Despite the outcome of this case, the tribunal took it upon themselves to tighten the loop in the law and make it clear what type of property will be considered ‘non-residential’. The test was decided as follows:-
Where these factors are in existence, the property will be considered residential for the purposes of SDLT.
If you are considering buying a ‘run-down’ property to redevelop and sell, you need to assess whether the property is capable of being deemed ‘uninhabitable’. This is a strict test and misapplying it could result in the wrong tax being paid and HMRC taking action to recover this from you. You should consult an experienced Commercial Property Solicitor who will be able to advise you on the application of this test.
For further information relating to any of the points contained in this article, please contact Oliver Zaki on 01329 282 841.