Is garden land residential property?

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.


Tamzin Mandelli

Associate, Commercial Property

Prior to joining Hart Brown, Tamzin has worked in a wide variety of firms such as for a local authority, for regional and national firms,...

Associate, Commercial Property

Tamzin Mandelli

Prior to joining Hart Brown, Tamzin has worked in a wide variety of firms such as for a local authority, for regional and national firms, as well as running her own firm.

Tamzin specialises in all aspects of commercial property including the sale and purchase of shops, offices and restaurants, landlord and tenant matters (from granting the new lease, through to the various licences for works, transfers and so on) and dealing with the eventual termination of a lease. She is also experienced at dealing with development work including option agreements and acquisitions.

Her most memorable case was the lease of some advertising space – for a well known electronics company in Leicester Square!

Here are Tamzin's answers to a brief interview about her interests and achievements.

What's your favourite book?
The Wheel of Time series by Robert Jordan – so much more than the Game of Thrones.

What would you have done if you had not become a lawyer?
I would have liked to have become an archaeologist. History fascinates me – particularly the Tudor era.

What's the high point of your legal career?
Apart from joining Hart Brown? When I drove past a school and recognised it because I had been involved in the legal work to widen the pavement. It was the first time I realised that the work I did made a difference and I still get a buzz when I recognise buildings or places because I have been involved in the legal work behind them.

What is the one thing you wished you had known at 18 that you know now?
Don’t hold onto your opinion too tightly – both you and circumstances change. Don’t be afraid to change your mind!

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