My wife has a buy-to-let (BTL) property in Darlington that she purchased prior to our marriage. I own the house we are living in and have done so since we moved in together in 2007. We married in 2012. We are now looking to move, and I propose to buy our new main residence in Newcastle in my name only again, as I think it would avoid the 5% stamp duty land tax (SDLT) surcharge for additional dwellings. Have I got it right, please? Secondly, if we bought the new main residence in joint names, would the surcharge kick in because of my wife's BTL property?
Arthur Weller replies:
Your analysis does not appear to be right. When either spouse of a married couple purchases a property in England, the extra 5% SDLT rules apply if either spouse owns another property, even if the spouse owning the other property is not the one purchasing the new property (see HMRC’s Stamp Duty Land Tax Manual at SDLTM09820) (in Scotland, similar rules apply (additional dwelling supplement) even if the couple are not married but simply cohabiting.) However, it appears to me that possibly you are not only jointly buying a new main residence, but at the same time you are selling the main residence that you have jointly lived in since 2007. If this is the case, HMRC’s guidance at SDLTM09810, Example 1 states that the extra 5% SDLT will not apply because you are replacing your previous main residence; Condition D has not been met.
