VTOGC7150 - Property rental business: Minimum occupation

The grant of an interest in a partially let building is capable of constituting the transfer of a business as a going concern (TOGC) provided that the transferee continues with this property letting business. This is the situation that happened in the case of Robinson Family Limited ([2012] UKFTT 360 (TC),TC02046) where the transferor agreed heads of terms in relation to one floor of a three storey building, and the transferee granted a lease of this floor.

It is also worth noting that the Upper Tribunal in Royal College of Paediatrics and Child Health (and 1 other) [2015] UKUT 0038 (TCC) did not take issue with the fact that a tenant only occupied a single room – that appeal failed because the tenant had been introduced by the buyer and had never been part of the seller’s business.

The position is less straightforward in cases where land is sold and only a small part of the site has been used for economic activity – for example rent received from an electricity sub-station, or the granting of a right to place advertising hoardings, or the provision of off-street parking. Whether or not the sale of the whole of the land will constitute a TOGC will depend on the facts of each case. It will often be a matter of degree.