Chargeable Consideration: Deposit and loan arrangements
Under the provisions of FA03/SCH17A/PARA18A, where a tenant makes a loan or pays a deposit (whether to the landlord or to a third party) the repayment of which is contingent on anything to be done or not to be done by the tenant:
* the amount of the loan or deposit is to be treated as consideration other than rent (premium) paid by the tenant for the grant of the lease * except where the amount of the deposit does not exceed twice the relevant maximum rent (being the highest rent payable in respect of any continuous 12 month period during the first five years of the term of the lease), in which case it is ignored for the purposes of stamp duty land tax (SDLT).
The same provisions apply to loans made or deposits paid by an assignee in connection with the assignation of a lease. In this case the relevant maximum rent is the highest rent payable in respect of any continuous 12 month period during the first five years of the term remaining outstanding as at the assignation date.
For details of how SDLT is calculated on such arrangements, see SDLTM13040.
(NB The above provisions were enacted to counter a complex avoidance scheme and are not normally encountered in practice).