Divorce and GGT outside of the 12 month exemption

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My ex-wife and I are in the final stages of an amicable divorce. I am keeping the main residence, which we jointly owned together, and I am in the process of buying her out. I have already given her half of the money which she is due.

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What’s the process for creating a deed of trust to transfer rental income to spouse ?

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As a married couple we own a house which we have been renting out for the last 18months . As I am receiving an occupational pension and state pension that put me in the 40% tax band I wish to transfer the benefit of this property to my wife.

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Does a Periodic Tenancy mean a new tenancy every month?

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Periodic Tenancy:

Under English law, once a fixed period tenancy comes to an end it is automatically replaced with a periodic one, based on the rent payment period (commonly monthly), unless the original tenancy is terminated. With an Assured Shorthold Tenancy (AST) termination would be if the tenant leaves at the end of the term, or is served a 2 months’ notice by the landlord effective at the end of the term.

The periodic tenancy rolls on indefinitely if the parties wish it to, though interestingly, a determination in a test case (Superstrike Ltd v Marino Rodrigues 2013)¹, contrary to what many in the industry believed at the time, a statutory periodic tenancy is a new and distinct tenancy, not a continuation of the tenant’s previous status.

On this basis a tenant sought to argue that a periodic tenancy is a new tenancy EVERY month. In Walcott v Jones & Jones November 2017, a county court appeal, the tenant argued that a tenancy which had started prior to the introduction of new rules (1^st October 2015) the landlord had not complied with them before serving his s21 notice, and therefore the notice was invalid.

Tenancies commencing before the change date and up to 1^st October next year (2018) do not have to comply with these new rules brought in under the Deregulation Act 2015 (s21A and s21B of Housing Act 1988) – meaning the landlord must provide the tenant with a gas safety certificate (if applicable), an EPC and the DCLG “How to Rent Guide” before a valid s21 notice can be served.

Clearly, if the plaintiffs could establish that the tenancy renewed each time then it could be argued the landlord did not comply, and that was the decision of the county court.

However, according to a note on the case on Giles Peaker’s Nearly Legal Blog, Ms W being the landlord of the Joneses, it was accepted for the purposes of the appeal that the new rules only apply to a tenancy that commenced on or after 1 October 2015 and until October 2018, including any “renewal tenancies”. The plaintiffs’ argument went that as the grant of tenancy was a monthly period from the start, (there was no written agreement), each month represented a new grant.

The appeal judge, Judge Hand QC, held that the grant of a periodic tenancy meant that if notice was not given in accordance with the agreement the tenancy would continue after the original term. Whether this was considered as an extension of the original term or a ‘deemed re-grant’ did not matter, as for the purposes of Housing Act 1988 (as amended), neither amounted to a ‘grant’ of a tenancy. Parliament did not intend a ‘grant’ in such circumstances. The county court judge had erred in law and the appeal was allowed.

A similar point arose recently in Leeds City Council v Broadley 2016 ² concerning council tax liability, where it was acknowledged that a periodic tenancy was a singular tenancy, as per the Law of Property Act 1925. In that case the court of appeal held that a tenancy grant for a year or six months, and thereafter a month to month periodic tenancy, was indeed a single tenancy.

The conclusion to all this is that a periodic tenancy it does not result in a new tenancy each period – it is in fact a single ongoing tenancy, from period to period. But, as per Superstrike, a statutory periodic tenancy that arises at the end of an AST fixed term, is a new tenancy, not a ‘renewal’ tenancy.

Superstrike Ltd v Marino Rodrigues 2013

Leeds City Council v Broadley 2016

Deregulation Act 2015

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Private rented sector value climbs to £1.4trn, but growth slows as two-speed market emerges

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The seventh edition of the Kent Reliance Buy to Let Britain report has been launched. The report provides an update on the growing size and value of the private rental sector in Great Britain, and details the returns landlords are seeing across the sector all analysed by region.

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