Tax implications of uncommercial lets
There are various circumstances in which a landlord may let a property at rate which is below the current market rate or, indeed, allow the property to be used rent-free. For example, during the Covid-19 pandemic, landlords may have agreed a reduced rent with tenants who are struggling financially and are unable to meet the normal rental payments in a bid to help them out and on the basis that some rent is better than none. Where a landlord has properties that would otherwise be empty, these may have been occupied by family and friends either at a low rent or rent-free.
When reaching the decision to allow the property to be occupied rent-free or at a rate below the market rate, the impact on the deductibility of expenses was probably overlooked.
Restriction on relief
While the landlords motives might have been philanthropic, unfortunately this approach is not shared by HMRC when it comes to allowing a deduction for expenses incurred in a period when the property when not let at a commercial rent.
For expenses to be deductible in computing the profits of the property rental business, those expenses must have been incurred wholly and exclusively for the purposes of the property rental business. HMRC take the view that if the landlord does not charge the full market rent or impose normal market lease conditions, it is unlikely that this test is met. A strict interpretation would mean that expenses could not be deducted.
Deductions capped at level of rental income
Where a property is let for a rent which is less than the market rent that the landlord could obtain, HMRC permit expenses to be deducted up to the level of the rental income received. It is therefore not possible to create a loss in relation to an uncommercial let. Where the expenses exceed the rental income, no relief is given for the excess expenses – they cannot be carried forward to the following year, even if the property is let at a commercial rate in that year. No deduction is permitted for expenses relating to a period when the property is occupied either by the landlord or by family or friends rent-free.
Where the period for which the property is let at an uncommercial rate is temporary, if possible, delay significant expenditure to a future period when the property is let commercially so that full relief for the expenditure can be obtained.
In the situation where a friend or relative house sits while a property is empty, expenses incurred in that period can be deducted if the property genuinely remains available for commercial letting and the landlord is actively seeking a tenant. HMRC guidelines suggest relief will not be lost if a relative house sits for one month over a three-year period.
However, no deduction is available for expenses incurred while a property is occupied rent-free by a friend or relative who is essentially using the property to take a holiday. Where a holiday home is let commercially for some of the time and used rent-free by the landlord or by his or her friends or relatives some of the time, the expenses should be apportioned between the commercial and uncommercial use. Expenses related to the commercial use can be deducted in excess of the rent for commercial lets; however, expenses apportioned to uncommercial use can only be deducted up to the level of the rent received, if any.
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