Forum Replies Created
Sounds like a covenant
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s88b.html
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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wilko1 wrote:Terry, Wont the bank want to look at the new director to see if they can service the previous loans of the company ?and what happens if the past director of the company has given a personal guarantee. (as mostly standard these days). Are the absolved of their responsibilities if made not a director anymore.
Wilko, I was referring to setting up a new trust and trustee.
If the director of the existing trustee company changes this would probably be a breach of the loan agreement with the bank. Any personal guarantees would continue too – even if the person leaves the company.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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a business name is just that – a name. It doesn't matter what you call a trust as that doesn't change things. Where you are giving a personal guarantee this will limit your borrowing capacity as if you had that loan yourself.
If you have hit the serviceability wall you could possibly more forward by having others take the position of director of the trustee company and thereby you avoiding the guarantee – but they will need to.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Will Skelly wrote:And may I ask is anyone aware of the fees involved with Connective?My company, The Loan Experts Pty Ltd, is with connective. $680 per month plus $110 per month per loan writer plus GST.
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god_of_money wrote:Terry,Correct me if I am wrong.
I thought that you can transfer 50% to your partner/spouse free if stamp duty in NSW as long as it is intended to use it as PPOR
From one name to 2 names you can. Without checking, i think you cannot go from 2 to 1.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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In NSW you would be up for stamp duty on the transfer of your interest.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Squiresy,
You could possibly transfer your interest in your property to your spouse. If in VIC it could be exempt from stamp duty.
But because ownership is changing she will need to apply for a new loan. If you guarantee this loan then you haven't achieved much – your borrowing capacity will be the same.
Also setting up a trust won't assist in increasing your borrowing capacity. Neither will multiple trusts.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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read the contract carefully. based on what you have said if the contract falls over there would be no settlement and no further deposit payable, but what other clauses are there. Get a lawyer to review.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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jate wrote:Hi Colin, i too was thinking it would be as simple as that but the bank informs me that this is not possible because for interest only loans the amount is always a differing amount each month they won't know how much to deduct plus there is a 3 day delay from OFI so they said it's not possible?im just trying to think how utility companies direct debit for electricity bills with differing amounts but the bank cannot?
Yes, they can.
Which lender is this?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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juvanix wrote:Goodness…..so our lawyer plus the buyer's lawyer and accountant is saying that the property cannot be listed under 'going concern'. I agree that the sale cannot be sold as a ' going concern' after doing more research. ( THANKS crj!) However, our accountant is still arguing that it can be used.So now, he's asking whether the sale will be input taxed. I need a new accountant……
Ask you accountant to put his arguments in writing and back it up with legislation.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I’ve seen a few doosies. One client, a business man, had his son as settlor of the trust – so his son could never benefit from it. Set up by an accountant!
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Get legal advice or risk paying 10% to the government.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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adriannqld wrote:Hi guys,I almost got burnt by my last tenant
I self Managed and he stoped paying and then wouldn't move out. Made up BS excuses. Followed RTA.QLD website, did the right notices and evicted him but he was still there.
Lodged a dispute. Who knows how long they will take to reply.
A couple of days past and I thought I would have a look to see if they were still there. No car in sight but lights on.
So I knocked on the door and the Tenants mate Answered. Tenant was not there.
I called the police saying, the truth as always, I dont know who is in my apartment but the tenant was evicted last week. Its not him in the apartment, and they were evicted last week. There is possibly damages done, or maybe this guy is a squatter, he said he was a friend of the Tenant but it looks like he may be living there.
The police were great. They said they would have a look, find out who he is, and have a look around. (possible damages, no need for notice).
Well the guy answered the door for me in a flash but didnt open for the police. He was hiding stuff or something. We entered. they found some Marijuana, and scared the crap out of this guy. But being nice police they didn't charge him. The tenant was due home from work but didn't come. Police didn't want to kick the guy out as his young Daughter was upstairs. (Stuff the guy but a kid is a kid, pity she couldnt have a better father). Told me I could go to the Courthouse for a Warrant of Protection, and that it would get processed quickly.
The next day the apartment was dirty but empty.
He moved his furniture out of the house but in unsecured carport.
Can I take it?
Its abandoned? He still owes me $1000 Plus New Door, Locks, and fees to clean the place. There is no bond left. I want to take his stuff till he pays because going to court will take 1-2 months, then he still may not even pay.
Im curious as to if I can keep his stuff, however this story is here to Thank the Police a bit, there is so many horror stories, the Police really want to help. and hope for anyone else that gets into similar situation.
Happy Days.
Lucky you got some nice police. No you cannot take his stuff – how do you know it is his for starters. You need to look for the ‘abandoned goods act’ is similar and see what rights you may have to it.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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yellina wrote:Dear Tiger Miger,If your mum's money is sitting in your account. It will definitely decrease the interest. following are the few recommendations.
- Make sure you have a written agreement. Stating that the money belongs to her.
- Please update your will with her, entitling the money if some thing goes wrong.
In my perspective you are doing a right thing by buying the house from your partner. You are saving him lot of cost. Hope he realizes that.
Good luck.
Hari Yellina
Hari, if it is mum’s money it won’t fall into Tiger’s estate.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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FMS wrote:My attempt at humour was lost in translation or perhaps the words I chose?Sorry Colin, as a lawyer I rarely joke so humour often confuses me.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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FMS wrote:Thanks for sharing Terry.A commentary on gifting funds in order to be deductible would be nice
Gifting funds isn’t deductible.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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mathyland12 wrote:However im only partially comfortable about "Who" to go and see first to set this up? A lawyer? An Accountant? or Financial Advisor? If the answer is the Accountant, should i use my current accountant? I already have a family trust that has purchased one property and my current accountant knows my situation well. (sorry as im not sure if this is a silly question). Similar should i be using the same finance broker? or should i split up my lending?Sorry for so many questions.
/quote]
You will need financial advice, so I would say a financial planner should be the first person to contact. Decide whether you really should set up the SMSF and what it will invest in etc.
Then you will need legal advice on the terms of the trust deed, how to structure the trustee company, who should be director, shareholder, terms of the constitution. Also consider control of the company upon your death or incapcity etc. You will also need legal advice on who should enter any contracts and under what conditions.
Then you may need tax advvice, but the fin planner may be able tp provide the basics.
At the same time, or just after set up, contact a mortgage broker to get the pre-approval in place.
Then one you have found a property contact the lawyer before signing, get the contract reviewed, get finance fully approved and then exchange contracts.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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rc388 wrote:Hello, I live in NSW and planning to buy an investment property also in NSWIn terms of loan structure I’m looking to take out a second loan based on the equity from PPOR to act as the deposit and pay also for the stamp duty – its almost like a line of credit
I understand that stamp duty paid on title transfer is counted as part of the cost base and the stamp duty on the mortgage can be claimed over 5 years
My question is can I claim the interest on the second loan ie. What was used to borrow to pay for the stamp duty on title transfer because I have used it solely for the purpose of producing income? No private use from this account
Thanks
Generally yes, but it depends how you structure things.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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I beleive the legislation is worded so that the deporeciation is added back whether you claim it or not. So by not claiming it you are not preventing this and are just throwing money away – or donating to a good cause however you look at it.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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I am not sure how non lawyers can set up companies and trusts. Even if a lawyer is preparing the documentation a non lawyer can not give legal advice so what happens if a client asks who should be trustee or who should be director? What does this clause mean? etc
Also neither accountants of financial planners will be covered by their PI insurers for legal advice. For the amount of profit you are turning over is it worth the risk?
Just a few weeks ago I set up a custodian company for a SMSF who entered into a contract to purchase a property in the name of the SMSFs when it was intended to borrow because of unqualified advice. It was a close call but we saved the client only to have them copy St George’s custodian sample deed word for word! Signed up they even left ‘insert name here’ all over the deed where they were supposed to actually inser the names! My retainer didn’t extend to the custodian deed – but I had to warn them anyway.
In summary, only lawyers can prepare deeds and only lawyers can set up companies and trusts, including SMSFs and bare trusts. This is the case even if an accountant or a fina planner uses deeds prepared by a lawyer because it involves legal advice. What you need to do is to let the lawyer set up the trust completely and then you can give financial advice – if you hold an AFLS or are an authorised rep.
It would be interesting to hear what AFSL dealer groups think about this.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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