The FTT has considered a case where the taxpayer bought a flat with the benefit of a right to use a communal garden (Sexton v HMRC  UKFTT 73 (TC)). The tribunal dismissed the appeal, holding that the subject matter of the transaction was wholly residential:
“This … is not a case where the same right benefits a number of properties. The Easement is created by the Lease, passes with the leasehold interest the Lease creates and benefits only the Tenant of the Flat. The fact that other people with properties in or around Onslow Gardens may have similar (or identical) easements does not to my mind mean that this easement created by this lease is not a right over land which benefits this flat alone. The right (the Easement) the Lease creates is peculiar to the Flat; although enjoyed in common with others with similar rights, it is an individual right over a communal facility.
If it falls to be analysed in its own right, the Easement falls within section 116(1)(c).
In Nael Khatoun Judge Citron indicated that, had he needed to decide the point, he would have concluded that Mr Khatoun’s rights over the communal garden fell within section 116(1)(c) …, and that fortifies me in my conclusion.”
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