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Keeping It Real Estate

News and Trends in UK Real Estate, Disputes and Planning Law

Posted in Real Estate News

Budget shock for property industry: non-UK resident landlords to be taxed on UK property gains

Quietly, almost without any fanfare, a tax policy of more than 50 years designed to encourage overseas investment into UK real estate was reversed in the small print of the Budget. The announcement has provoked a storm across the property industry.

UK tax will apply to the disposal by non-UK residents of all UK property (commercial and residential) from April 2019.

There will also be a UK tax charge where a non-UK resident realises a gain on disposal of a 25% interest in an entity which derives directly or indirectly 75% or more of its gross asset value from UK property.

Generally only gains accruing from April 2019 will be within the charge to tax and historic gains will be excluded. For residential property already within the scope of the Non-Resident CGT regime, gains from April 2015 will continue to be within the charge to tax.

Overseas pension funds registered in the UK will be exempt from capital gains tax on disposal of UK property investments or interests in UK property rich entities. Also companies owned as to at least 80% by qualifying institutional investors such as pension funds, life assurance companies and investment trusts will be able to benefit from the substantial shareholdings exemption when disposing of 25% shareholdings in property rich companies.

Despite the historic nature of this change in UK tax policy, the writing has been on the wall for some time. It follows the pattern of a gradual widening of the UK tax net for overseas investors in UK property over the last few years.

The UK is practically the only developed country in the world not to charge tax to non-residents on the disposal of commercial property located in its jurisdiction. Most double tax treaties allocate taxing rights on immoveable property to the State in which the property is located. You could characterise this Budget announcement as bringing UK tax policy on commercial property gains into line with that in other countries.

It has been a feature of the UK property market for several years that overseas investors, particularly from China and the Middle East, have dominated the acquisition of high value commercial UK property. Much of this investment is held through offshore structures, such as non-UK resident companies and unit trusts.

We may see a flurry of sales and restructurings in 2018, but many investors are long term holders of UK property.

In the future, investors will look at onshore structures for holding UK property. The proposed reduction in UK corporation tax to 17% from April 2020 will mean that a UK holding company may be a simple and relatively attractive option.

Alternatively there are tax exempt vehicles like open-ended property funds (PAIFs) or listed property companies (REITs). One likely impact of the change is that investors will look closely at converting existing joint venture vehicles and funds into UK REITs.

The government has made its policy intentions clear, but there is a consultation on the shape of the legislation which is open for comment until 16 February 2018.

Posted in Real Estate News

Unopposed Lease Renewals – a need for speed?

From 1 December 2017, there will be a year-long pilot scheme for unopposed lease renewals that are issued in the County Court at Central London (CCLC).  All claims will be transferred to the First Tier Tribunal (Property Chamber) (the FTT) in London.

The main aim of this is to “ensure that all cases proceed to a final determination as smoothly and as quickly as possible“.

Significant changes to the current process

1. From the issue of proceedings until the final hearing should take just 20 weeks – there is no allowance to stay the claim except for a one-off three month stay at the beginning for PACT referral, mediation etc.

2. There is no Case Management Conference – once the proceedings have been issued (if no initial three month stay is agreed) the FTT’s standard directions kick in.

3. These directions only allow for one round of tenant’s amendments to the draft lease.

4. They do not allow for witness statements of fact.

5. The valuation experts are to exchange comparable evidence on market rent at an early stage – prior to solicitors having agreed on which terms of the lease are in dispute!

6. The judge will always sit with a valuer/assessor (London valuers will not be allowed to sit due to potential conflicts).


The main benefits appear to be:-

1. the judge will have greater knowledge of property matters, including business tenancies, and there will be a valuer/assessor at the hearing;

2. if valuation is the only issue, the FTT may consider written submissions rather than an oral hearing; and

3. no excuses for parties to drag their heels, or drag out the proceedings for tactical purposes.

Parties should be prepared for the fact that once proceedings are issued, they are going to have to work extremely quickly on getting the draft lease agreed.  They should therefore be proactive with their negotiations from the moment a notice is served.  Additionally, it would be sensible for a draft lease to be submitted as soon as reasonably practicable and not left until directions are in place.

A point to note is that should a party wish to use this pilot scheme and issue proceedings at the CCLC when the property is not in London, it will be sent back to the county court venue which has jurisdiction.  Additionally, any interim applications still need to be issued out of CCLC and transferred from there to the FTT.

Posted in Real Estate News, Uncategorised

Government issues draft Tenant Fees Bill banning residential letting fees

Earlier this year, we blogged on the government’s proposals to ban residential letting fees.  On 1 November, the government took the next step towards realising those proposals by publishing the draft Tenant Fees Bill.

The Draft Bill

The draft legislation bans landlords and agents in England from charging residential tenants and licensees fees or other charges on top of the rent as a condition of the grant, renewal or continuance of a tenancy.  The ban covers letting agents’ fees as well as fees charged by landlords and any required payments to third parties (for example credit checks).  There are a handful of exceptions: a refundable security deposit (capped at six weeks’ rent, which is an increase from the one months’ rent originally proposed), a refundable holding deposit (capped at one weeks’ rent) and tenant default fees.

The ban will apply only in relation to tenancy agreements and licences entered into after any legislation comes into force.  It does not apply to long residential leases or social housing tenancies.

It does not bite on assignments of tenancy agreements.  In reality, assignments of Assured Shorthold Tenancies are rare as ASTs are often short term and personal.

The draft Bill includes anti-avoidance measures by preventing a rent at a higher initial sum which subsequently drops during the first year of the tenancy.  It does not prevent an increase in rent spread over the term of the tenancy.  However, the devil is in the detail, and the final legislation will need to be unpicked to fully understand what the anti-avoidance measures prohibit.

Where agents seek to pass fees onto landlords, there is nothing that prevents a landlord from reflecting such fees in a higher rent spread evenly across the term.  Whether they do so is likely to depend on supply and demand of similar properties in the area and therefore the extent to which tenants can shop around for rental properties.

Enforcement of the ban will be carried out by local authorities (Trading Standards).  An initial breach would result in a civil penalty of up to £5,000.  Subsequent breaches within five years would be a criminal offence but with a civil penalty of up to £30,000 as an alternative to prosecution.

In his written statement to parliament, Sajid Javid (Secretary of State for Communities and Local Government) highlighted the government’s aim to create “a more transparent and competitive private rented market with a higher quality of service” by sharpening and increasing letting agents’ incentives to compete for landlords’ business.  The ban will also do away with the risk of unfair practices in the form of double charging.

The draft Bill has only this week been introduced in parliament and it will not come into force for some time.  However, the message from the government is clear and consistent: it is a case of when not if we see the end of letting fees.

Posted in Real Estate News

Flexible terms in flexible space: is London’s office market changing for good?

The London office market is not what it was 10 years ago.  A combination of “place-making”, changes to employee working patterns and the development of efficient and robust IT infrastructure has enabled London’s work force to become a much more mobile community which has prompted a change in attitudes to leasing.

Businesses, particularly small to medium enterprises, are changing the way they manage their exposure to the property they occupy.  SMEs think in much shorter timelines, which at its most extreme is on a quarterly rolling basis and at the other end, over a 2 year cycle (invariably tied to the EU negotiation timeline).  As such, the growth in the “non-traditional” leasing sector that is suited to this type of occupier has been meteoric over recent years, leading commentators to suggest that by 2030, 30% of all office space in the capital will be let under “non-traditional” or “flexible” leases.

Larger corporates that have the resources to commit to property long-term (both space requirement and financial exposure) remain suited to a traditional “investment grade” lease.  That large proportion of London’s leasing market remains relatively undisturbed.   However, change is underway and influences from the non-traditional market are beginning to break into the mainstream.

Further, as the British Property Federation’s Model Commercial Lease gets adopted over time, it will create a more even and customer focused market for tenants looking up and outside investors looking in.  The introduction of a better dilapidations protocol, a less burdensome alterations process, a relaxation around the use of space and generally a more realistic business platform, will move that end of the market into a new (and some would say “non-traditional” space altogether).

With the shortage of brand new supply in the capital, landlords (and the larger corporates mentioned above that no longer require full occupancy) are maximising the use of second hand space.  This is true of both established landlords (the likes of British Land) and new players to the market (WeWork, The Office Group).  These entities have capitalised on the growth of SMEs in the financial-tech, TMT and creative sectors by presenting opportunities for SMEs to maximise the use of space in a more flexible and customer focused way.

Principally flexible leases are shorter (both length of term and the document itself). They narrow the occupier’s financial exposure relative to the low cost of equipping the premises and allow SMEs to occupy the space immediately to avoid protracted fit outs and delays, which appeals to SME start-ups and companies in their infancy.  All-inclusive rent, service charge and insurance deals are common as are proportionate commitments to other occupational costs. More immediate termination rights are offered in lieu of the more traditional insured damage regime (a mechanism that would otherwise tangle the occupier in needless process at a time it needed to remain quick-footed in a moving business environment).   Legally, the non-traditional lease shares many similarities with the investment grade model.

Given the minimal fit out and connectivity to mechanical plant and equipment already in place, landlords maintain relatively tight grips on the occupier’s ability to alter, as they do around commonly required investor, group or “hub” sharing provisions by taking the leases (and the space sharing provisions within them) outside of the protection of the Landlord and Tenant Act 1954.  Similarly, the occupier’s ability to offload the space is suitably narrowed to avoid occupiers creating layers of interests that could impact landlords’ liquidity.   Contrast that with lighter touch tenant break options (frequency and conditionality) and you can see how these arrangements favour both parties.

Economically, the rise in non-traditional leasing has had a negative effect on both rental value and demand for space in the institutional sector where landlords have voids to fill.  In a growing flexible sector, SMEs have more choice and current estimates suggest there are around 150 flexible workspace centres in London, a number that will no doubt increase through Brexit and beyond.   There’s certainly room for new players in this rapidly growing market, but they had better act fast.  The wider feeling is that the rapid rise in the non-traditional leasing sector will have a truly transformative effect on the London market in years to come.

An earlier version of this article appeared on EGi and in the EG London Investor Guide series.

Posted in Real Estate News

The Clean Growth Strategy – Government releases its strategy for a low carbon future

On 12 October the Government released its latest strategy to promote “clean growth” in the UK. It sees clean growth as growing the UK’s national income, while cutting greenhouse gas emissions that contribute to climate change.

In her ministerial statement, Claire Perry, the Minister for Climate Change and Industry, outlined the strategy as an important milestone in the UK’s efforts to cut emissions, while at the same time growing the economy. However as you might expect she notes that this is not the end of the process.

The strategy sets out the Government’s proposals to achieve clean growth – including a target to invest over £2.5bn to support low carbon innovation from 2015 to 2021.

The proposals are wide ranging, including improving low carbon transport and enhancing the UK’s natural resources. Some of the key real estate points flagged in the Government’s strategy are:

1. Accelerating clean growth

• Setting up a Green Finance Taskforce to play an advisory role in the provision of public and private investment in the green finance market.

• Working with mortgage lenders to develop green mortgage products for more energy efficient properties.

2. Improving business and industry efficiency

• Continuing with plans to close the CRC energy efficiency scheme following the 2018-9 compliance year, and implementing an increase to the main rates of the Climate Change Levy from 2019.

We think this is good news. Having been mentioned in the March 2016 budget, we have heard nothing since and we thought that it might have been overlooked following Brexit. It is good to see that this is still on the agenda.

• Further consultations on improving energy efficiency in commercial buildings and continuing to raise minimum standards of energy efficiency.

• Establishing an industry energy efficiency scheme to help large companies install measures to cut their energy use and bills.

• Ensuring that landlords continue to refurbish and improve the performance of their buildings.

3. Improving the energy efficiency of homes

• An aspiration for as many homes as possible to be EPC Band C by 2035.

• Improving privately rented homes with an aim for as many to be EPC Band C by 2030, including consulting on how social housing can meet similar standards.

• Carrying out an independent review of Building Regulations and fire safety with a view to strengthening energy performance standards for homes under the Building Regulations.

So where does this strategy leave us? Bearing in mind that this is simply a strategy – not much further than where we were before. It certainly shows that this is on the Government’s radar. The Climate Change Act 2008 already requires the UK by 2050 to reduce its emissions by at least 80% from the 1990 baseline. The next steps will see a series of Government consultations and an Industrial Strategy White Paper, in anticipation of setting the sixth carbon budget by 30 June 2021.

In connection with the release of the strategy, we saw two further steps towards clean growth. The Government issued a call to evidence on the Green Deal Framework, which may suggest that it will be tweaked to align with Minimum Energy Efficiency Standards. It also released a consultation to seek views on additional measures and incentives to encourage home-owners to invest in energy efficiency improvements. You may have seen in the press reports that this could be achieved by measures such as stamp duty incentives. Watch this space for a follow up blog on consultations to come.

Posted in Real Estate News, Uncategorised


Thanks to the popularity of short term lettings, we are benefiting from a wealth of choice and flexibility in holiday accommodation. Wherever the destination, there will certainly be unique properties available at reasonable prices through short term lettings of private homes.  This has proved to be a highly successful formula which has produced great results for most hosts.  However, there are a few hidden legal pitfalls that prospective hosts should watch out for.

In particular, leaseholders (including long leaseholders) should check the terms of their lease for restrictions on use. Last year, the Upper Tribunal held in Nemcova v Fairfield Rents Ltd[1] that a long leaseholder of a residential flat breached her lease by sub-letting her flat, as the lease required it to be used as “a private residence“.  Although the lease did not state that it had to be the tenant’s own private residence, the Upper Tribunal considered that there must be a degree of permanence.  As the short term occupation was transient, the judge concluded that the occupiers would not have considered the flat as their private residence even for the time being.

In Bermondsey Exchange Freeholders Limited v Kevin Conway[2], a landlord obtained a four-year injunction restricting its tenant from sub-letting his flat.  The court found that the tenant had breached the terms of the lease, which included a requirement to use the property as a residential flat for a single family and not to sub-let without the landlord’s consent.

In April 2017, several newspapers reported on the case of Ashley Gardens Freeholds Limited v Linda Marinelli Landor[3] which involved an 81-year old “bohemian” poet who let out her Westminster apartment for late night “soirees” and, on one occasion, flamenco dancing. After repeated breaches of the lease requirement not to “use other than a private residential flat in one occupation only“, the judge held that the tenant had “demonstrated over very many years that she either does not understand the rules or feels that they do not apply to her“.  The court ordered forfeiture, but with a six-month delay to give the tenant an opportunity to sell the flat and avoid the complete loss of a valuable asset.

With online platforms in this area rapidly expanding, there are plenty of opportunities to enjoy – and potentially profit from – short term lettings. However, the court rulings are a reminder to leasehold owners to check what restrictions might exist in their leases before opening their homes to holiday makers.

[1]               Nemcova v Fairfield Rents Ltd [2016] UKUT 303 (LC)

[2]               (County Court at Lambeth),10 November 2016 (unreported elsewhere)

[3]               (County Court at Central London), April 2017

Posted in Real Estate News

Setting the boundaries: a new protocol for resolving disputes

When you hear the term “boundary dispute”, you probably imagine the following familiar set of circumstances:

  • Two parties at loggerheads over a small strip of land.
  • Entrenched positions holding sway over the legal and surveying considerations actually needed to resolve the dispute.
  • A complex, chaotic and protracted dispute, even though there should be a well-worn path for resolving such arguments.
  • Legal and other costs quickly getting out of all proportion to what is at stake.
  • A dispute which is ripe for mediation or some other form of alternative dispute resolution (ADR) but with parties unwilling or unable to take that step.

Surely there must be a better way? Now there is.  As part of the Property Protocols initiative, Hogan Lovells, together with barristers from Falcon Chambers, have devised a Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol) .  It is a free resource available to all and applies to any commercial or residential property situated in England and Wales.

How does it work? The protocol sets out a timeframe and process for neighbours to exchange information, minimise the scope for disputes, and enable disputes to be resolved as efficiently as possible.

First it details a series of steps for the parties to follow as soon as a boundary dispute arises, including identifying the first conveyance by which their properties fell into separate ownership (very often the key for unlocking the entire dispute).  Evidence should then be sought and exchanged about the physical features on the land at the time of the first conveyance.

The protocol then lays down ground rules for the use of expert surveyors.  A single expert should be jointly instructed where appropriate. Where the value of the land justifies separate experts, they should produce reports, meet, identify and narrow the issues between them in accordance with a set timetable.

Once those steps are taken, there should be a meeting  on site with the parties and their surveyors in order to agree exactly what the issues are and see if any accommodation can be reached.  If so, the protocol outlines the importance of properly documenting and registering any agreement to prevent further disputes in the future.

Significantly, the protocol encourages the use of mediation and other forms of ADR at key stages throughout the process and directs the parties and their lawyers to keep further negotiation and mediation under review at all times.  The protocol rightly warns that parties who fail to do this will do so at their peril should it come to costs being awarded at court, whatever the outcome.

In our view, this structured but consensual way of resolving boundary disputes, which does not always have to involve professionals, but recognises that sometimes there are legal and surveying issues to be considered, is preferable to the draft Property Boundaries (Resolution of Disputes) Bill  currently in Parliament.  The Property Litigation Association  agrees with the approach taken in the protocol and has given it their backing.

The authors of the Boundary Disputes Protocol are:

Guy Fetherstonhaugh QC of Falcon Chambers

Jonathan Karas QC of Falcon Chambers

Stephanie Tozer of Falcon Chambers

Nicholas Cheffings of Hogan Lovells

Mathew Ditchburn of Hogan Lovells

David J Powell FRICS of PSL Chartered Land Surveyors has contributed a Supplementary Guidance Note on what to expect from surveyors

Posted in Real Estate News

Time for a Reminder

Timing is everything, they say, and nowhere is that more true than in the law of contract, where a failure to meet a deadline can have serious commercial and practical ramifications for the parties. In this blog Tim Reid has pulled together a reminder of some of the most common rules affecting commercial contracts connected with UK real estate.

Missing the boat – Where time is of the essence

Where time is of the essence in relation to the exercise of a contractual right, that right can be lost if not exercised within the time limit.

It is sensible to make it clear in the contract itself whether time is of the essence in relation to the deadlines it contains.

If a contract is silent on whether time is of the essence (or on a party’s ability to make time of the essence by serving notice on the other), then  a strict time limit may be implied by the operation of the surrounding provisions of the contract, or by an established legal presumption.  Bear in mind that:

  • time may be implied to be of the essence, if missing the deadline would lead to the other party losing out on the benefit of the contract (United Scientific Holdings v Burnley Borough Council [1978])
  • where one party serves notice on the other, stating that time is of the essence, and failure by the other party to comply with the notice would deprive the first party of the benefit of the contract, then the notice may validly take effect to make time of the essence (Re Olympia & York Canary Wharf Limited (No.2) [1993])
  • time is usually of the essence as regards a tenant’s deadline for service of a break notices under a lease (Orchard (Developments) Holdings Plc v Reuters Ltd [2009])
  • There is a general presumption in relation to rent review clauses that time is not of the essence in respect of the time limits they contain.  However, this presumption can be rebutted, either by implication or express provision.  Time will be of the essence for service of the tenant’s counter-notice if the lease contains a clause stating that if the tenant has not served a counter-notice in time, the rent will be that set out in the landlord’s rent review notice.

When is “close of business”?

A contract may require steps to be taken on or before “close of business” on a particular day, without defining what that term means.

In the recent case of Lehman Brothers International (Europe) v Exxonmobil Financial Services BV [2016], a contract provided for notice to be received before “close of business” for it to be deemed to have been received on that day. The notice in question was served at 6.02pm.

The court held that the burden is on the party who alleged that the deadline had been missed, to establish when the close of business occurred.  In the present case, the receiving party had failed to produce sufficient evidence to support its contention that – in the circumstances – close of business should mean 5pm.  On the facts of the case, it was the evidence of the sender that the court preferred.  The judge made it clear that “close of business” has no fixed meaning in English law, and would have a different meaning in different contexts.

Calculating time

Finally, where a contract refers to a period measured in days or months, remember that for the purposes of your calculation:

From” is typically exclusive, so one should start counting from the day after the date specified. For example, where a lease term is expressed to commence “from” 1 January (rather than “on” 1 January), that date is not included in the term.

From and including” (and “to and including”), and “starting with” are inclusive of the dates specified.

A period of “clear days” excludes the day on which the notice is sent (and the day on which it arrives, or takes effect).  For example, 14 clear days’ notice of a shareholder meeting must allow for the day of service, then 14 days, and then the date of the meeting.

Whilst “clear days” typically include weekends and public holidays (unless the contrary is specified), “business days” will not include non-working days.

Remember to bear in mind the date on which the notice will actually be received or will be deemed to be received under the terms of the contract, in order to start the clock ticking.

Posted in Real Estate, Real Estate News, Uncategorised

What is the “Staircase Tax”?

There has been a lot of comment in recent weeks about the so-called “staircase tax” and its impact on small businesses, especially focussing on its retroactive effect and the fact that business occupiers are having to pay tax for previous years that wasn’t demanded from them.  At first blush, this all sounds very unlike the way in which a modern Western democracy operates its tax system, so what’s going on?

Many of you may remember that back in July 2015 the Supreme Court handed down its judgment in Woolway v Mazars[1], a case concerning the liability of Mazars for business rates and held (to the shock of business tenants across the country) that a tenant who occupies separate floors in a building is only entitled to treat the floors as part of the same rateable occupation (known as a hereditament) if it is possible for him to move between those floors without leaving space that is exclusively his.  If there are two hereditaments the tenant is less likely to be able to claim an allowance for size (“quantum relief”) to reduce his liability for business rates. So, a tenant who has to use the common parts of the building, such as common lifts or staircases, to pass between floors will have to treat them as separate hereditaments, whereas the tenant who has a private lift or staircase connecting its floors will be able to treat them as one and so could claim quantum relief.

The Supreme Court did not change the law with this decision; they simply explained what it already was.  The Valuation Office Agency (the government agency responsible for overseeing business rates) has therefore instructed its officers to apply the decision retrospectively, so that the rates collected for previous years where quantum relief was incorrectly applied are “topped up” by the rates payers to what they should have been without the incorrect quantum relief.  It is this loss of quantum relief that has been dubbed “the staircase tax”.

Two years on from Mazars, the Supreme Court’s decision is still good law, but it is perhaps inevitable that the VOA’s decision to apply it to rates bills that were settled before the judgment came out will cause difficulties for businesses of all sizes, especially SMEs who operate on tight yearly budgets and might not be able to fund unbudgeted payments for previous years’ tax without finding savings elsewhere.  They will also have to budget for rates that are higher in future years not just because of the increase in the rating multiplier but also because of the loss of quantum relief.

Is there anything that business occupiers can do to avoid the staircase tax?  In some situations, it may be possible to find ways of designating parts of the building as exclusive to one tenant in order to create a direct connection between floors.  However, this sort of strategy will need careful analysis and advice from both lawyers and specialist business rates consultants or surveyors as this sort of arrangement has yet to be tested. Alternatively, whilst it may not help with the rates liability for previous years, occupiers could also consider installing new communication routes between floors, for instance connecting staircases between contiguous floors although this may be an uneconomic solution.

On new lettings, if tenants need to take multiple floors in a building, they should certainly seek to take contiguous floors and consider ensuring that they have a way of moving between them without entering common parts of the building.

For landlords, if the values are substantial enough, which they can be in London especially, tenants may want to negotiate deals to ensure they can pass between floors without leaving their exclusive space.  This may present bargaining opportunities for the landlord.

As the government is unlikely for the foreseeable future to change the law, both landlords and tenants should start thinking creatively about strategies that could achieve value for each other.

[1] Woolway (VO) v Mazars LLP [2015] UKSC 53 [2015] PLSCS 240

Posted in Real Estate

RPI and SDLT – the silver lining of a flawed measure of inflation

With the Retail Prices Index back in the news again after rail commuters were hit by the biggest annual increase in fares for five years, the debate has resurfaced about whether it is time for the RPI to “RIP”.  The Office for National Statistics has reiterated its assertion that the index is a “flawed” measure of inflation, but has observed that its use remains prevalent in both commercial and public sector contracts.  Legislation compels the ONS to continue producing the RPI while at the same time also publishing its preferred Consumer Prices Index and the new CPIH Index which covers consumer price inflation including owner-occupiers’ housing costs.

Within the commercial real estate arena, index-linked rents remain prevalent in a number of sectors and predominantly the RPI remains the chosen benchmark.  Whilst this has tended to result in higher uplifts having to be borne by tenants, there is at least one small advantage for the tenant: adjusting rent “in line with” RPI can be ignored for SDLT purposes.

The usual rule (subject to an exception for uplifts in the final quarter of the fifth year) is that any increases in rent during the first five years of a lease have to be taken into account when calculating SDLT.  When the increases aren’t known at the time the lease is granted, they have to be estimated, and subsequent returns filed once the actual increases have crystallised.  However, rent adjustments in line with the RPI do not have to be taken into account, and the tenant does not have to pay any additional SDLT in respect of those adjustments.

Points to Note:

(a)  The exception in the legislation refers only to the Retail Prices Index.  If rents are to be adjusted in line with any other index or measure of inflation (for example the CPI), then the exception does not apply.

(b)  The exception only applies where the rent adjustments are “in line with” the RPI. Guidance from HMRC states that the exception will not apply to “RPI plus” or “RPI minus” adjustments.  For example, a rent review mechanism which varies the rent by “RPI plus 1%” would have to be taken into account in the SDLT calculation.

(c)  The guidance does suggest that capped RPI-based adjustments “which are subject to a minimum or maximum restriction” would fall within the exception.  We would exercise caution, however, in seeking to take advantage of this exception – particularly if the adjustment is subject to a collar – given the ambiguous phrasing of the guidance.

(d)  If the RPI-based review is worded so as to be upwards only, the guidance clearly states that this remains allowable within the exception.

(e)  Care should be taken when choosing the months by reference to which the adjustment is made.  The guidance states that, where rent is to be adjusted by reference to the RPI figure for the month up to three months earlier, this is allowable.  By implication, if your reference month is more than three months before the rent review date, then your review clause is no longer “in line with” RPI.