1 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES
2 WATSON FARLEY & WILLIAMS: KEY FACTS 130+ PARTNERS FOUNDED OFFICES OVER 400 LAWYERS 11 COUNTRIES OVER 20 LANGUAGES SPOKEN
3 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES 2 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES England and Wales have historically had a dynamic, flexible and transparent property market, offering a broad variety of investment options. Overseas purchasers in particular are increasingly assessing opportunities in England and Wales as potentially attractively priced assets, particularly in light of the lack of restrictions on foreign nationals or overseas companies buying or renting property (subject only to tax implications). PARTICULARLY EFFICIENT AND CLIENT FOCUSED', WATSON FARLEY & WILLIAMS IS WELL RESOURCED AND VERY KEEN TO PLEASE' LEGAL 500 UK 2014 Part A of this Guide seeks to provide a legal background for overseas entities or individuals considering investing in or renting residential or commercial property in England or Wales, either to occupy themselves or for investment purposes. Part B addresses issues to consider relating to commercial leases and business rates payable by a commercial occupier. Part C discusses some of the tax considerations which may be relevant to overseas purchasers.
4 3 Watson Farley & Williams PART A: OWNERSHIP OF LAND The two most important forms of ownership are: Freehold Where the property (both land and structures) is effectively owned by the buyer. A buyer may choose to own the freehold as this gives the most control, has a capital value and will enable the grant of leases to secure an income stream. However, it should be noted that freehold ownership may still be subject to certain covenants, for example, restricting the use of the property and/or rights of others, such as rights of way for third parties across the property. Leasehold (i.e. leasing or renting the premises) Where the leaseholder s ownership of the land is contractually limited in time to the length of the term of the lease. The lease will be granted out of a freehold or superior leasehold estate. Depending on the rent payable to the landlord of the lease, long leases will usually have a capital value. The lease may also allow the tenant to create underleases. Land can be held by more than one person in one of two ways; either as a joint tenancy or a tenancy in common. The legal ownership can be held by a maximum of four owners. In the case of individuals, a joint tenancy is a form of ownership where normally, should one owner die the property will automatically vest in the surviving owner(s), regardless of the terms of the deceased s will. A tenancy-in-common, however, is a form of ownership where on the death of one of the joint owners, the relevant share in the property will form part of the deceased s estate and will pass to their beneficiaries by their will (or the rules set down by law where there is no will). Leasehold Key elements A lease is a contract between a landlord and tenant. It is characterised by the landlord granting the tenant exclusive possession of the property for a fixed time (i.e. for a specified term or a period which is capable of being brought to an end by notice). Main types of lease The ground lease This is a (normally residential) long lease often granted for more than 99 years, usually for a one off sum, called a ʺ premium ʺ, with a nominal rent payable (sometimes called a ʺ peppercorn ʺ ) throughout the rest of the term. A ground lease may be perceived to be closer in nature to a freehold, owing to its capital value. Apartments/flats are normally sold or held on a long lease. The rack rent lease This is the most prevalent form of a commercial occupational lease, usually granted for around 5 10 years. The tenant will pay a full market rent, often quarterly, with rent review provisions and usually with no premium. Short term residential occupational leases These generally take the form of an Assured Shorthold Tenancy, whereby at the end of the lease period the landlord is entitled to possession of the premises. Registered land and how land is transferred Registered land The majority of land in England and Wales is registered at the Land Registry. The register is a matter of public record and the title is guaranteed. Most (but not all) third party rights will be shown on the register e.g. mortgages. How is land transferred? A typical sale and purchase transaction is a two stage process involving an exchange of contracts between the buyer and the seller followed by completion of the legal transfer. A seller s solicitor will issue a draft sale contract, which will be negotiated and then exchanged with a deposit usually being paid. This is the point of no return, when both parties commit themselves to complete on a certain date. Up to this point, either party can withdraw without any liability to the other side. The bulk of the work comprises title due diligence up to the exchange of binding contracts.
5 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES 4 Following exchange of contracts, the transfer of the property from the seller to the buyer is made by completing the transfer deed and by complying with Land Registry registration requirements. Completion is, in effect, moving day, when the money is paid to the seller s solicitors and the keys to the property are handed over. There is normally a 28 day period between exchange of contracts and completion/closing of the sale and purchase. Principle of caveat emptor In land sales in England and Wales, the principle of ʺ caveat emptor ʺ ( ʺ let the buyer bewareʺ ) is key and places the responsibility for due diligence and searches relating to a property on the buyer. It is normally the task of a buyer s solicitor to consider and negotiate the legal documentation. The buyer s solicitor will also seek to discover as much information as possible about the property before contracts are exchanged. This is achieved by examining the title documentation and through a variety of searches and enquiries, including but not limited to: Local search list of enquiries about property sent to local authority which includes questions about planning, highways, drainage etc. Environmental search historical information about previous uses of the land. Preliminary enquiries questions about the property which are sent to the seller s or landlord s solicitors requesting information about disputes with neighbours, use of property etc. It should be noted that on exchange of contracts a 10% deposit is normally paid (although subject to negotiation) to either the seller or the seller s solicitors. In the event of the buyer s default and failing to complete, in addition to other claims the seller may have, the seller would normally be entitled to retain the deposit. Planning Prior to making most alterations, erecting new buildings or changing the use of an existing building, the relevant owner or occupier must contact their local authority s planning department in order to obtain planning permission. Planning applications in England and Wales are administered by the local authority covering the area in which the particular building or site is located. The system in England and Wales is largely discretionary and therefore flexible. The usual time frame for a straightforward planning application to be considered is between eight and 13 weeks from the formal application, depending on whether it is treated as a major application. The appeals system also follows a comprehensive process. Physical examinations a physical survey of the property should be arranged by the buyer and carried out by a surveyor. Where contamination may be an issue, investigations of the land can be carried out by environmental consultants.
6 5 Watson Farley & Williams Construction An essential component of any due diligence prior to acquiring a property (and prior to any exchange of contracts) is to investigate matters which relate to the actual construction of the property. This tends to be more relevant for recently constructed properties. As well as the buyer carrying out a survey, the buyer s solicitor should ask the seller s solicitor to provide details on matters such as when the property was constructed, what modifications (if any) have been carried out (and when), and whether any of the construction contracts can be inspected. Subject to the age of the property (or the age of any modifications), the buyer should enquire as to whether any warranties or guarantees are available (or could be provided to a buyer) from the builder or developer, which may give a buyer certain contractual rights in the event that any defects became apparent in the property post completion. In respect of newly built residential properties, NHBC (National House Building Council) certificates (if provided) provide certain guarantees on build quality, which give a buyer a degree of peace of mind. NHBC guarantees primarily cover the structural integrity of a newly built residential property. They also ensure that a developer is responsible for all repairs during the first two years after completion. Tax implications of acquiring an interest in property Value Added Tax (ʺ VAT ʺ ) Commercial property transactions may be subject to VAT. Whether a commercial property transaction is subject to VAT will depend on several factors, mainly being whether it is regarded as a new property or whether the seller has opted to tax the property (formerly known as an election to waive exemption from VAT). VAT is currently charged at 20%. VAT is not usually charged on the premium or rent paid on a residential transaction, since residential property transactions are generally exempt from VAT or ʺ zero ratedʺ. Stamp Duty Land Tax ( SDLT ) SDLT is a mandatory tax payable by the buyer on the purchase price, on completion or substantial performance of the contract, whichever is earlier. Current SDLT rates are listed at the back of this Guide. On the grant of a lease, SDLT is also payable on both the premium and rental payments. There are a number of transactions which may be exempt from SDLT. Detailed consideration of these transactions is beyond the scope of this Guide, although Watson Farley & Williams can provide advice as required. Council Tax Council tax is a property tax that residential occupiers pay towards the costs of local government. Details of the council tax for the relevant property would need to be obtained from the local authority for the area. Capital Gains Tax On the sale of a property, the seller may be liable to pay capital gains tax. Capital gains tax is chargeable on the ʺ gain ʺ element of the sale proceeds. Liability to pay capital gains tax partly depends upon whether the property is commercial or residential and whether a relief applies (for example, capital gains tax is not usually payable where an individual disposes of a residential property that is his own or main residence). Inheritance Tax UK inheritance tax (ʺ IHT ʺ ) may be chargeable on the death of an owner of UK property. In certain circumstances, IHT may also be chargeable when a trust or gift of the property is made during the owner s lifetime. A detailed consideration of IHT is beyond the scope of this Guide, although Watson Farley & Williams can provide advice as required. Tax on rental income Broadly, an individual or company will be liable to UK tax on income generated by UK property whether or not that individual or company is UK tax resident. Under the Non-resident Landlords Scheme, UK tax (currently at 20%) is deducted at source from rental payments, before they are paid to the non resident landlord.
7 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES 6 Capital allowances Capital allowances provide tax relief for the expenditure of certain capital items. Where available, a business can deduct capital allowances from its taxable profits, therefore reducing its liability to tax. There are many types of capital allowances, the most common being those available for expenditure on: (1) plant and machinery (such as kitchen equipment); and (2) integral features (such as lifts and air conditioning units). Capital allowances operate to enable a business to gradually write off the cost of certain qualifying capital assets. Under the capital allowances regime, a business can apply an annual writing-down allowance (WDA) against expenditure on such assets. Broadly, plant and machinery is eligible for a WDA of 18% whilst, integral features are eligible for a WDA of 8%. Exceptionally, in certain circumstances, a 100% first year allowance may be available.
8 7 Watson Farley & Williams PART B: COMMERCIAL LEASES Pre-lets Tenants can rent premises that are already available or may be entitled to enter into ʺ pre letʺ agreements with developers to lease premises prior to the carrying out or completion of construction work (enabling the future tenant to have input in specifying the design, layout and fittings of the building). Security of tenure In some cases where a tenant occupies premises for business purposes, statute grants them the right to renew their lease on largely identical terms (subject to a rent calculation (ʺ rent review ʺ )) at the end of the lease (the intention being to protect the tenant s goodwill at the premises established whilst in occupation). Certain rights to compensation may be available in the event that the landlord is able to rely on one or more of seven grounds to refuse to renew the lease (e.g. if it requires occupation of the premises for its own use or wishes to redevelop the property). Nevertheless, it is common for the parties to agree to exclude security of tenure and right to compensation by ʺ contracting out ʺ of the statutory provisions, which is a relatively straight forward procedure. If the lease is contracted out then the tenant must vacate the premises when the lease expires, with no protection from statute and no right to compensation. Consents In some leasehold property, the consent of third parties, such as a superior landlord, may be required to the sale/transfer. Rent review Where leases are granted for more than five years, it is standard to provide for a rent review every third or every fifth year. These reviews can be based on the open market rent which would be payable for a lease of the property on similar terms, may be linked to the Retail Prices Index or (less commonly) on fixed increases. Such provisions are almost always for ʺ upwards only ʺ reviews, which means that the rent cannot go down on review. Full repairing and insuring lease The majority of leases of commercial premises in the UK are on a full repairing and insuring basis (ʺ FRI leaseʺ ) whereby the tenant is liable for the upkeep and decoration of the property and the landlord s costs of insuring the building. This means that prior to entering into any lease the tenant is strongly advised to carry out a full survey as the tenant will be obliged to put the property into full repair. A survey should highlight any defects and these can be excluded by negotiation from the lease liabilities. Service charge Where a property is let to several different tenants the landlord will retain responsibility in relation to the structure and the common parts of the building. He will recover these costs from the tenant through charging a fee called a service charge. The amount of service charge paid is generally proportionate to the size of the tenant s individual unit, in relation to the rentable space in the whole building. Break clauses Some leases include break clauses giving the landlord and/or the tenant the option to end the lease before its expiry date. These clauses usually specify how much notice has to be given and may have financial implications. All conditions for the exercise of the break must be satisfied, otherwise the right to break will be lost. It is advisable to consult with a member of the Real Estate group at Watson Farley & Williams prior to finalising heads of terms on a lease or purchase of a property.
9 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES 8 Privity of contract Where a lease is transferred to a new party, the original tenant will be subject to different liabilities dependent on the date of the lease. For leases signed before 1 January 1996, the original tenant remains legally responsible for the rent and other commitments for the duration of the lease, regardless of whether they transfer the leasehold interest to a third party. Subject to certain exceptions, for leases signed on or after 1 January 1996, the tenant will not remain liable for these commitments unless the landlord requests the tenant to sign a guarantee, known as an ʺ AGA ʺ. If an AGA is required, the tenant will remain liable for these commitments during the ownership of the new tenant, but not the new tenant s successors. Sometimes a landlord may request a guarantor (or other security) for performance of the tenant s obligations. Business rates Business rates are a property tax that business occupiers pay towards the costs of local government services. They typically range from 20 to 130 per square metre (approximately 2 to 13 per square foot).
10 9 Watson Farley & Williams PART C: TAX CONSIDERATIONS FOR OVERSEAS PURCHASERS Introduction Increasingly, the UK is seen as an attractive, stable and safe place for foreigners to invest in real property. Some overseas purchasers wish to acquire residential property for their own and/or family s occupation, whilst others wish to enjoy income and capital growth. Commercial property is also seen as an attractive investment. There are a number of UK tax issues which may affect overseas purchasers of UK real property; although, it is often possible to reduce the impact of these issues by careful planning. Tax strategies for overseas purchasers will depend upon their own particular circumstances. The information below provides a very brief overview of some of the tax considerations applicable to overseas purchasers when investing in UK property and does not cover all tax issues that may be relevant to an overseas purchaser. This document is intended as an introductory Guide for clients and should not be used as a substitute for detailed legal advice. Overseas purchasers are strongly recommended to seek tax advice prior to investing in UK real property, which can be provided by the Tax group at Watson Farley & Williams. Acquiring residential property for a purchaser s own occupation An overseas purchaser of UK property wishing to acquire the property for their own and/or their family s occupation should be aware of the following issues: If an individual resides in the UK, he may become resident in the UK for tax purposes and therefore, potentially liable to UK tax on his/her worldwide income and capital gains. Non UK tax resident individuals are usually only liable to UK tax on their UK source income and are generally exempt from UK capital gains tax. An individual will be UK tax resident if they satisfy the requirements of the UK statutory residence test that was introduced in April This test is complicated and where an individual s residence status is not clear, they are advised to seek specialist tax advice. It is important to note that there is a special tax regime applicable for those individuals who are UK tax resident but not domiciled in the UK. This regime is known as the Remittance Basis of taxation. This is a complex area of tax law and is beyond the scope of this Guide. Where a non UK tax resident individual obtains financing for the purchase of a UK property from a non-uk bank (otherwise than through its UK branch) there may be UK withholding tax (currently at 20%) on interest payments. However, relief from withholding tax may be available under a relevant double tax treaty. UK property is an asset for UK IHT purposes. Therefore, generally, UK property will constitute part of an individual s estate for UK IHT purposes, irrespective of whether that individual is tax resident in the UK. The rate of UK IHT on death is currently 40%. It may be possible for a non UK tax resident individual to mitigate any liability to pay UK IHT by purchasing UK residential property through a non UK resident company. However, in such circumstances, additional tax issues would need to be considered that are beyond the scope of this Guide. Purchasing a property through a company may give rise to a charge under the Annual Tax on Enveloped Dwellings (ʺ ATED ʺ ). Since April 2013, tax is chargeable annually on certain ʺ non natural personsʺ who hold an interest in a UK residential property that is worth more than 2million on specific valuation dates. A nonnaturalʺ person will include: a company; a partnership with a corporate member; or a collective investment scheme. The rates of the ATED depend on the valuation of the property. The current rates for the chargeable period 1 April 2014 to 31 March 2015 are set out below: Over 2 to 5million 15,400 per annum Over 5 to 10million 35,900 per annum Over 10 to 20 million 71,850 per annum
11 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES 10 Over 20 million 143,750 per annum From 1 April 2015, the scope of the ATED is to be extended. Properties valued at more than 1million will become subject to the ATED and a charge of 7,000 will apply. From 1 April 2016, a charge of 3,500 will be imposed on properties valued at more than 500,000. A detailed review of the ATED is beyond the scope of this Guide. The Tax Group at Watson Farley & Williams can provide further advice on request. Investment in residential property Where an overseas purchaser and/or their family do not occupy the UK property, many of the UK tax considerations referred to in the previous sections should not apply. However, other UK tax considerations may be relevant, which are outlined below: An individual will not become UK tax resident simply by virtue of owning a UK property. As discussed above, UK tax resident individuals are generally liable to UK tax on their worldwide source income and capital gains. As discussed above, where a non UK tax resident individual obtains financing for the purchase of UK property from a non-uk bank there may be UK withholding tax on interest payments. Non-UK tax resident individuals are liable to UK income tax on their UK source income at rates of up to 45% (depending on whether they are subject to the basic or higher rates of tax). A non UK tax resident individual would be liable to UK income tax on rental income generated from the property. Generally, under the Non Resident Landlord s Scheme (referred to earlier in this Guide) UK tax (at 20%) is deducted at source from the rental payments before they are paid to the non UK resident landlord. Tenants do not need to withhold tax from rental payments where there is a UK managing agent. Landlords can opt out of this scheme and pay any UK income tax on rent from the property directly to HMRC. Currently, no capital gains tax should be payable on gains realised by non UK tax resident individuals when disposing of UK residential property that is held as an investment. Capital gains tax is chargeable on gains realised on disposals of UK residential property by certain corporate entities (including non UK tax resident companies) that are within the scope of the ATED. How much capital gains tax a company will pay depends on how long it has owned the property. It should also be noted that the UK Government has announced its intention to introduce a capital gains tax charge on non-uk tax resident individuals disposing of UK residential property. The charge is expected to be introduced from April A detailed review of these new rules is beyond the scope of this Guide. As discussed above, where a non UK tax resident individual purchases UK property, the property will usually form part of his/her estate for UK IHT purposes. Where UK property is purchased for investment purposes, it may be possible for a non UK tax resident individual to mitigate any liability to pay UK IHT by purchasing the UK residential property through a non UK tax resident company or trust. However, again this may give rise to a charge under the ATED. Subject to certain conditions being satisfied, relief from the ATED may be available where there is a qualifying property rental business. Trading in residential property Generally, the proceeds of a property trading activity undertaken in the UK are liable to UK taxation on an income basis. Broadly, taxable profits constitute any income derived from the sale of the property less certain allowable expenses incurred on the purchase, development and funding of the property.
12 11 Watson Farley & Williams SDLT and VAT in relation to UK residential property SDLT is chargeable on the purchase of UK residential freehold and leasehold property and is generally payable within 30 days of completion. The rate of SDLT depends on the purchase price of the property and can be up to 15% of the consideration payable. As detailed earlier in this Guide, generally, VAT is not charged on the purchase of UK residential property. Therefore, VAT is not usually significant in the context of UK residential property. Investment in UK commercial property When investing in UK commercial property (e.g. offices, shops, industrial units etc.), it will be necessary to consider similar UK tax issues to those discussed above in relation to residential property investments. Accordingly, in most cases, commercial property acquired for investment will either be by a non UK tax resident individual or, more probably, an entity owned by such an individual. However, there are a number of important differences to note when considering a potential investment in commercial property: In the case of UK commercial property, the availability of capital allowances on plant and machinery is likely to be relevant. As explained earlier, capital allowances provide tax relief for the expenditure of certain capital items. The detailed rules relating to capital allowances are outside the scope of this Guide, although the Tax group at Watson Farley & Williams can provide comprehensive advice as required. In contrast to UK residential property, the VAT rules applicable to UK commercial property are more complex. Generally, acquisitions of new commercial buildings are subject to VAT at 20% (the standard rate). The acquisition of second hand commercial property may be subject to VAT at 20% if the seller has opted to tax the property (elected to waive the exemption). The detailed rules relating to VAT are outside the scope of this Guide. Currently, there is no UK capital gains tax on disposals of UK commercial property by non UK tax resident individuals. Subject to certain anti avoidance provisions, non UK tax resident companies should not be liable to UK tax on chargeable gains realised on the disposal of UK commercial property. Trading in UK commercial property The general principles (discussed above) which apply to trading in UK residential property also apply to trading in UK commercial property. SDLT and UK commercial property As with UK residential property, SDLT is chargeable on the purchase of UK commercial property. However, different rates apply and the maximum rate is (currently) 4%. Joint ventures Investors may choose to invest in UK commercial property by means of a joint venture with other parties. Specific UK tax considerations apply where UK commercial property is purchased by way of a joint venture. A detailed analysis of these tax considerations is beyond the scope of this Guide. Summary UK tax is likely to be a significant issue when deciding how to invest in UK real property. It is strongly recommended that UK tax advice is obtained prior to a purchase of UK property. The Tax group at Watson Farley & Williams is fully equipped to provide UK tax advice in relation to investments in UK real estate.
13 A BRIEF GUIDE TO THE PURCHASE OF PROPERTY IN ENGLAND AND WALES 12 CURRENT RATES OF SDLT Residential land or property SDLT rates and thresholds Purchase price/lease premium or SDLT Rate transfer value Up to 125,000 Over 125,000 to 250,000 Over 250,000 to 925,000 Over 925,000 to 1.5million Over 1.5million to 2million Zero 2% 5% 10% 12% The SDLT rates are charged progressively to each slice of the overall purchase price, in accordance with these bands. Separate rules apply when calculating the SDLT payable on the rent for new residential leasehold properties and existing residential leasehold properties with short term leases (less than 21 years) and where property is acquired other than by an individual. SDLT rates for non-residential or mixed-use properties Purchase price/lease premium or SDLT Rate transfer value Information This Guide is a basic summary of the legal process involved in the purchase or leasing of property in England and Wales. It is not intended to give any specific legal advice or take the place of advice from other property experts. The situations described may not apply to your circumstances. If you require advice or have questions or comments, please speak to your usual contact at Watson Farley & Williams LLP, 15 Appold Street, London EC2A 2HB (Telephone: ). The information in this Guide is correct as at 15 January Up to 150,000 (annual rent is under 1,000) Up to 150,000 (annual rent is 1,000 or more) Over 150,000 to 250,000 Over 250,000 to 500,000 Over 500,000 Again, it should be noted that different rules may apply when calculating the SDLT payable on rent for new non-residential or mixed use leasehold property. Zero 1% 1% 3% 4%
14 13 Watson Farley & Williams CONTACTS MARK PREVEZER Global Head of Real Estate and Partner GARY RITTER Partner MARIA LLEWELLYN Partner SIMON FOLLEY Partner FELICITY JONES Partner MARTIN LUCAS Partner RICHARD STEPHENS Partner
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