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Selling the garden for development

01 Aug 2023 | BY Claire Critchley

If you own a large plot of land that you no longer require but you don’t want to move home, you may consider selling some of it for development. However, from a tax perspective, there are considerations that you need to be aware of up front.

Selling the garden v developing the garden

There is a difference from a tax perspective between selling some of your garden to a developer and developing the land and then selling the property or properties that you have built on the land.

If you sell part of your garden but the attached property is, at the time of the sale, your only or main residence (or has been at some point), you may be entitled to private residence relief on any gain that you make on the land. This is a huge plus as it may mean that there is no tax to pay.

What counts as a ‘garden’?

Private residence relief is available for a property for the period for which it has been the owner’s only or main residence, and also this test has been met at some point, for the last nine months of ownership. The relief also applies to land which is occupied and enjoyed by the owner with the residence as its gardens or grounds up to the permitted area. The ‘permitted area’ is set at 0.5 of a hectare. However, a larger area may be allowed within the scope of the relief where this is deemed to be reasonable having regard to the size and character of the house.

To qualify, the land will generally be enclosed land surrounding or attached to the property which is used chiefly for ornament or recreation. Land that is let out or used for a business does not qualify for the relief, nor does land which at the date of disposal has been fenced off for development.

Order of sale

If some or all of the land is sold separately, it will only qualify for private residence relief if the disposal is made at the time the property eligible for main residence relief is still owned. Once the main residence has been sold, the land is no longer ‘enjoyed’ with the main residence and the relief is not in point. The test is applied at the date of sale.

Development first

Care should be taken if the plan is to develop the garden yourself. Private residence relief is not available if you have fenced off part of your garden to develop it or the development work has commenced. The land will no longer be part of the garden and enjoyed as such as the main residence.

Any value arising from the development is likely to be taxed as a trading profit. However, any gain up to the point when it ceased to be used with the main residence may be liable to capital gains tax.

Partner note: TCGA 19922, ss. 222, 224(3).

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