HMRC has always accepted that an assignment situation in which a seller is a tenant and transfers the lease to the buyer who will become the new tenant is considered TOGC under the other conditions. HMRC has now accepted, under normal conditions, that the assignment of a lease may be a TOGC. For example, the court disagreed. It found that Coleridge was engaged in a commercial activity and intended to lease TO BAPM, attract third party tenants and lease premises. The decision is the right one. However, if you are advising on a similar situation, remember that this matter seemed to turn the terms of the condition in the rental agreement. If it had been made conditional on the sale to the university actually being concluded, it might not have been a TOGC. The point of contention was when a tenant abandons a lease and the buyer is an owner; the lease will normally “merge” with the lessor`s interest in the land and will essentially cease to exist. HMRC has never accepted that this situation could be a TOGC, given that the same asset is not used in the operation. The important point above is that if there are tenants before and after the transaction, this is a real estate rental activity.
The tenant`s status should be formalized, as there is a lease or agreement between the lessor and the tenant. This would be different from an “informal” agreement in which such an agreement does not exist or cannot be transferred. During the year of the Royal College of Paediatricians, the FTT found that the sale of immovable property subject to a lease agreement was a TOGC, although the conclusion of that agreement was subject to the exchange of sales contracts.