The reach of the tax man is long and in the context of lease variations it may also result in unexpected consequences for unwary landlords and tenants.  In the first of this two part blog we outline the various SDLT implications which may arise from lease variations.

  • A variation to increase the rent in the first five years of the term is treated as if it were the grant of a new lease in consideration of the additional rent. SDLT is payable by reference to the increase in rent.
  • Some variations will result in a deemed surrender and re-grant of the lease, which may be an unintentional consequence of the variation. This will happen, for example, where the variation is an increase in the duration of the lease or in the extent of the demise. For SDLT purposes this will also be treated as if it is the grant of a new lease and (as for any other lease) SDLT is payable in respect of the deemed new lease subject to the availability of “overlap” relief.  For this reason (as well as other property law reasons), tenants may want to mitigate the SDLT implications by taking a reversionary lease for the additional term or a supplementary lease of the additional demise, particularly if the original lease was subject to stamp duty.
  • Where the tenant gives money or money’s worth for a variation (other than an increase in the rent or a variation to the term), the variation is treated as an acquisition of a chargeable interest by the tenant and SDLT must be paid on the consideration.  Consideration given by the tenant for a reduction in rent is also chargeable to SDLT, although HMRC state that they ignore a party relinquishing a right under a lease (such as a tenant’s break option) for these purposes.

The relevant notification and charging thresholds, and the rules for linked transactions, should be taken into account in each case.