A win for property developers

Have you bought a derelict property since March 2016? Did you pay a Stamp Duty Land Tax (SDLT) surcharge on the purchase of that property? If so, you could be due a refund, writes Claire Bunton, associate solicitor, Dutton Gregory.

On April 1, 2016, the Government introduced the SDLT surcharge for purchases of additional residential properties by individuals and all properties purchased by a company. 

However, a tribunal decision earlier this year – PN Bewley v HMRC [2019] – established that the surcharge is not payable where the property is uninhabitable at the time of purchase.

This means that property developers and other investors who purchased a derelict property, perhaps as a renovation or rebuild project, could have overpaid on tax, entitling them to a refund.

When is a property uninhabitable?

PN Bewley v HMRC [2019] involved the purchase of a dilapidated bungalow in Weston Super Mare. The property was connected to services such as gas and water, but the pipework and other conduits facilitating those services had been removed. It also had missing floorboards and asbestos which needed immediate removal for safety reasons. 

The tribunal concluded that the question to be asked was whether the property was “suitable for use as a dwelling” at the time of purchase.   

While the judges did not provide any clear examples in relation to what would render a property suitable for use as a dwelling, it did consider a variety of case law, comparable legislation and the HMRC’s own guidance literature in order to guide its assessment. The reasoning behind that assessment can then be applied to individual cases.   

In this case, the tribunal decided that the overall condition of the property rendered it unsuitable for use as a dwelling, meaning that the surcharge did not apply and that the property was only liable to be assessed at non-residential rates. 

The facts will need to be looked at on a case-by-case basis to determine whether the criteria for suitability is met.

What evidence will I need?

If you wish to apply for a tax rebate, or exemption on this basis, the HMRC will likely wish to see evidence in relation to the condition of the property. 

Remember, it is the condition of the property at the time of purchase which is relevant, not since. Accordingly, all evidence must clearly relate to the purchase date. Dated photographs, surveys, insurance reports, quotes for work and, to an extent, eye witness accounts could all be useful.

If you are purchasing a derelict property now, ensure that you gather a good bank of quality evidence of the condition at purchase before any work is carried out to the property, and before much time passes from the date of purchase. 

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The HMRC may also wish to see evidence of the condition of the property some time prior to the sale, or an explanation as to the history of the condition, to ensure that it has not been rendered intentionally uninhabitable for the purposes of tax avoidance and it might be wise to seek this from your seller.

The outlook

The SDLT surcharge was brought in largely to disincentivise second property ownership and support the housing market, but with the loophole now exposed, the incentives are somewhat reversed. For those reasons, teamed with loss of potential revenue, it is expected that the Government will seek to close this loophole as soon as possible. 

Meanwhile, developers and investors may do well to look to the derelict building market for their next investment. Likewise, those with a derelict property on their hands may find it easier to sell now before the loophole closes. Estate Agents and conveyancers should also bear the exemption in mind when working with their clients.

If you wish to obtain an opinion as to whether a property is likely to be considered uninhabitable for stamp duty surcharge exemption or rebate purposes, contact Dutton Gregory’s property litigation experts Louise James or Claire Bunton at:

contact@duttongregory.co.uk

023 8214 8692

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