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It depend son your definition of ‘paid off’
There are 2 possibilities
A. Loan balance of say $400,000 with $400,000 cash in the offset account
B. Loan balance of $0 with an offset account (which offsets nothing)
With Option A the property isn’t paid off, but the loan is fully offset. If the cash in the offset is you personal cash, and not borrowed, and the loan has never been redrawn then if you moved out you could claim the full interest on the $400k once the property is available for rent.
With option B the property is actually paid off – but redrawing to use the money for a new main residence the interest will be a private expense and not deductible.
The situation is unclear because you say ‘paid off’ but also you state you have an offset account – which would be impossible if it is paid off, but possible if the loan balance is zero (but unusual). You also say ‘remortgage’ which implies there is not mortgage and if there is no mortgage the loan would actually be paid off – but you couldn’t have an offset account on it if it was!
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Before spending up big like that it may be worthile spending a whole day reading up as much as you can about options. Then if you decide to do the course more of it will sink in.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Best not to park borrowed money in an offset because the interest may not be deductible when used.
If the $270k loan relates to the property purchase the interest on this may be deductible when she rents this out.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I specialise in structuring from a tax, law and loan aspects and run two businesses –
Structuring lawyers
Loan Structuring Pty LtdTerryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You should avoid cross in 99% of cases as there is no benefits to you.
But with 5 years to retirement you should avoid it even more. Get them uncross whenever possible.
Imagine you are nicely retired and decided to sell one property so as to get more expenses to live on. You find a buy and sell and after paying out the loan you will have say $200,000 cash which could fund your living expenses for the next 6 years.
Close to settle you send in the discharge of mortgage form. Your lender then asks you to fill in more forms – they then say, if you are not working you cannot afford to keep the other loans so the bank, to protect itself, will keep all that $200,000 and apply it to the other loans.
You now have nothing to live on (other than your other income) and have paid off investment debt.
I’ve had at least 3 people approach me as a lawyer to try to help them with these situations – but there is nothing that can be done when one property secures many loans. Each of these persons has had their retirements, and lives ruined.
One poor woman had about 3 or 4 properties and living on the rents which were low – about $20,0,000 per year. She didn’t qualify for the pension because of the asset base. She decided to sell one to get the proceeds to live on. She sold it and the bank took the lot. She now had even less to live on cause one rental income was gone. The loans were PI was paying down the remaining ones didn’t change the repayments per month but just left her with even less interest to claim, so the situation was actually worse.
Yes it is a legal requirement to disclose your assets and liabilities truthfully.
4. No it is not illegal. If fact it is the opposite. The lender has a duty of care to make sure they don’t lend to people who cannot afford a loan. If you are going to be over a certain age at some point during the loan term, often 75, then the bank will want to know what your exist strategy is – how are you going to repay a loan when you are not working. St George just updated their policy on this 2 days ago.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Happy New Years PI Team!!!
Quick question, can a person who bought an off the plan apartment (2nd investment) via $1000 deposit and needs the remainder 5% next month (feb 2017) and have already signed the contract with the lawyer back in october 2016. Can he cancel/terminate the contract due to change in circumstance to his financial hardship and he wont be able to make the 5% deposit cos of his 1st investment property cashflow and has been delayed due to tenancy.
So can he cancel the contract or not possible?
Thank you in advance.
ZenGenerally not.
But the contract may be defective in some way which could allow this. Best to seek legal advice.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
In some states the first mortgagee needs to consent to a second mortgage bring lodged, in other states no consent will be needed.
Most major lenders will consent, but they want all parties to enter into a deed of priority so that they can be sure they will come first. I am not sure if they can refuse consent or not, but contractlly you are probably agreeing not to allow a second mortgage without getting their consider – you will be agreeing to this in your loan agreement with them.Keep in mind that a mortgage can still be effective if it remains unregistered – but less secure for the mortgagee.
A lender won’t lend any more money if there is a caveat on title.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Hi we just bought a house in Victoria it was a morgagee auction and the liquidator was present it has Caveats on the property we were meant to settle last week but settlement was delayed we have no idea for how long we really won’t this house what happens now thanks
You won’t be able to settle (if mortgaging) until the caveats are removed.
What does your solicitor say?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Refinancing may not be an option if the values have dropped. If the LVRs are still adequate it may be your best option however as you can start a new fresh IO term and also extend the total loan term to 30 years which will make the minimum PI payments lower when it does revert. but you will have to service to do this.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I charge $2750 including GST and ASIC fees to set up a trust with a corporate trustee. This includes legal advice on the structuring of the company and customising of the trust to suit your needs. Also advice on how to operate the trust so as to make sure there is asset protection against creditors. Also advice on asset protection in death and divorce as well.
Cost to run would be $250 for the annual asic fee and financials and tax returns for the trust – your accountant would best answer this as it will depend on what the trust does.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
– And they have the ability to transfer the units of the trust into their SMSF later on – perhaps when the property is cashflow positive.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I helped a client in a similar situation.
They had a fully paid off main residence worth $1.2mil. They bought a new main residence for $1.2mil and had to borrow about $1mil to purchase it. That meant about $50k per year in non deductible debt while they were also paying tax on the $30k positve cashflow of the existing property.
Solution was that we sold it to the trustee of a unit trust with the individuals borrowing to acquire the units. So basically they borrowed $1.2mil and used this money to pay down their new main residence loan. $50k more deductions per year and no non-deductible debt.
In NSW they also get the land tax threshold.
We had private rulings from the ATO saying the interest was deductible and that Part IVA would not be used to deny the deduction.
OSR rprivate ruling was obtained so that we could be sure the land tax free threshold could apply.There was no CGT on the sale to the trust. Only stamp duty – which they borrowed to pay.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
moving money around between loans won’t increase deductions, but it will result in a mixed loan and may actually decrease teh amount of interest you can claim.
Seek tax advice.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Joint owners are considered one owner for land tax purposes in NSW, so they don’t get one threshild each but a combined one.
Then if they own other property on their own their share of the joint property is taken into account so that they are not double taxed.
It is all very confusing.
This is why 2 people owning a few properties in in NSW will pay much less land tax than if they owned jointly.
Note that QLD is totally different
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
If you enter an option agreement you would have an interest in the property and could seek out buyers of it.
Yes you could do that.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
if you do this without a solicitor you will get into trouble.
Under state law a residential lease has a minimum term of 6 months…The solicitor doing your conveyancing should be able to assist with a licence to occupy for a little bit more than you are paying for the conveyancing.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
That would form part of your costbase.
To work out the cost base we need to know the costs for the 5 elements described under Section 110-25 of the ITAA 1997 which are:
1. Money paid or required to be paid for the asset.
2. Incidental costs of acquiring the asset, or costs in relation to the CGT event, for example, stamp duty, legal fees, tax advice, and so on.
3. Non capital costs you incur in connection with your ownership, for example, interest, rates, land tax, repairs and insurance premiums (provided not previously claimed). Included are any expenses incurred while the property was an owner occupied property.
4. Capital expenditure you incur to increase the value of the asset, if the expenditure is reflected in the state or nature of the asset at the time of the CGT event.
5. Capital expenditure you incur to preserve or defend your title rights to the asset.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You are buying an option on someone else’s property. They, the owners, are then finding a buyer to sell the property to. The buy would pay the owners a fee and because you have an option on the property the owners would have to pay you a fee to prevent you excerising your option.
It could work in NSW. No licence would be needed by you or by the owners for this.
The biggest impediment would be stamp duty.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You mean your costbase?
No, those calcs are not correct. What about the value of the property when you received the gift?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
You will also need some tax advice on the loan structure. Borrowing and parking in the offset wil create another mess and the loan interest won’t be deductible – even if it is eventually used to invest.
Hey Terry, slight sidetrack here (sorry OP) but you’ve piqued my interest (no pun intended), would parking sleep at night funds (savings) in an offset account also result in loan interest not being tax deductible???
Nope that is fine.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au