This is a question that has excised property lawyers and tax consultants for some time, so what is the answer to selling garden land? There is finally some resolution.
Residential property is defined in section 116 of the Finance Act 2003. Unfortunately some uncertainty arose from this definition as to whether or not garden land sold separately from its dwelling is also treated as residential property for stamp duty land tax purposes. HMRC have added to the confusion by sometimes advising that garden land sold separately from its dwelling was non-residential property.
HMRC have now clarified the position. HMRC’s “firm view is that where land within section 116(1)(b) or (c) is sold separately (without the dwelling), the land remains residential”. Garden land is therefore residential. They provide further guidance and add that the acquisition of garden land would be treated as residential even if the land had been fenced or walled off or otherwise been made inaccessible to the seller.
Following the acquisition of the garden land, it is likely to be treated as non-residential land on a future sale as it is no longer part of the garden of the residential property. This would, of course, not be the case if a new dwelling had been constructed on the land.
The effect of the garden land being treated as residential for stamp duty land tax purposes generally means a higher amount of stamp duty land tax paid on the acquisition.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
