Gift with Reservation - Joint Occupancy

A currently jointly owns his property with B and C as tenants in common. A owns 25% of the equitable interest, with B and C owning the remainder equally.

If A gifts his remaining share of the property to B and C, but continues to jointly occupy the property, would this be a gift with reservation of benefit, or would s.102B(4) prevent this? A would continue to fully contibute to household bills etc.

I am concerned that, if A had no equitable interest then he wouldn’t have any right to occupy the property at all. The risk would then be that, if the donees permit him to continue in occupation would this may be argued to be a “benefit in connection with the gift”.

If the above would be a gift with reservation, could this outcome be avoided if A merely gifted a portion (say 20%) and retained a portion (say 5%) for himself? Is there any de minimis?

Tobias Gleed-Owen
Hewitsons LLP

I think it will be a gift with reservation.

I also think you are right to be cautious about a gift under which the donor retains only a token interest in the property.

This view has some recent official support from HMRC in the commentary published in relation to the new IHT DOTAS rules- see example 10

Tim Gibbons

Thanks Tim

I see that IHTM14332 also includes the comment: “The joint property examples are on the basis that the joint owners take the property in equal shares. Refer any case in which the transferor takes less than an equal share to Technical.”

It seems unclear to me how retaining only very small interests would fall outside the wording of s.102B(4) but the general view seems to be that HMRC would challenge and DOTAS may well be invoked.

Tobias Gleed-Owen
Hewitsons LLP