The surcharge was introduced last year in a bid to crackdown on landlords and second-home ownership and means anyone buying a residential property who already owns a “major interest” in another must pay a 3pc additional charge.
This is on top of the core charge, but because it is 3pc of the full value above £40,000 it can make up two thirds of the total tax bill.
According to Paul Clark, a property lawyer and tax expert at Cripps, while HMRC guidance states that any stake in a property counts as a “major interest”, property law is clear that an “undivided share” – when ownership is clearly split between two people – does not satisfy this requirement.
“A lot of people, including married couples, own property as tenants in common so you own 50pc of a property each,” he said. “This means you can give or sell your share to someone else or leave it to relatives in your will.
“The stamp duty legislation talks about a major interest. If you dispose of a major interest you are entitled to relief. Let’s say two of us sell a house, we have both disposed of 50pc but we have also disposed of the whole house. We clearly get the relief.