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The Question: I was wondering if anyone had experience with a tenants in common situation where I would become a part owner of my mothers investment property and any implications that occur from this?
Lawyers deal with this sort of thing all the time.
Some of the consequences on transfer
– stamp duty for you
– CGT for her
– social security effects possibly
– new loans neededLonger term consequences
– estate planning for death and incapacity – what if you die and leave your share to someone else, what if your mum does – sort of thing
– ability to access equity
– disagreements
–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
No you can’t claim depreciation when sold. In fact you will probably have to add back any depreciation claimed (reduce the cost base by the DIV43 claims that you made or could have made = building depreciation).
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
Consider a related party sale
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 can ask, but it may still be worth getting your own as the life of certain assets starts again on purchase
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
These would be very hard to get, so best to assume 90% LVR.
You can get LMI loans up to around $2mil.
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 renovate you will have receipts so the cost of items can be added to your schedule. If you dispose of items you may be able to scrap them and write off any remaining depreciation claims not otherwise claimed – many depreciation companies will amend your report for no charge in situations like 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
Yes you can onsell – but consider what could happen if the land goes down in value. Also take into account the GST and stamp duty costs too as well as the income tax costs.
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 have any specific asset protection questions ask away, but I can’t really answer ‘should I’ type questions with something other then ‘it depends’ because it really does depend.
example.
Should I use a trust to buy property in NSW?This will depend on
– if it is negatively geared
– you have used up your land tax threshold already
– if you are concerned about asset protection
– if you understand the implications on death
– on your family situation
– on your financial situationFor example if you are a business owner and need to give perosnal guarantees for leases etc then you may be at risk of being sued. You now have to consider whether you are willing to pay an extra 1.6% pa in land tax to gain some asset protection. On a $400,000 land value property this would equate to $6,400 per year in land tax which you would not otherwise have. Is asset protection worth paying $6,400 per year for the next 40 years or so?
If not, then there are other options – a company with shares owned by the trustee of a discretionary trust.
Alternatively a property owned by your spouse.
or owned by yourself with a mortgage to a discretionary trustIf you are buying in QLD the same issues don’t arise because a trust gets a separate land tax threshold.
Once you have determined the ownership structure you need to determine the structure of the structure – terms of the trust, who plays what role, planning for death, bankruptcy, insolvency and family law disputes. If a company is involved then you need to determine the structure of hte company.
Once that is done then you need to understand how to fund it – gift or loan the deposit in. Who should be the giftor/lender and who to dcocument this
etc
etc
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 would have to go back and look, but there are many incorrect statements and much that was left out. She doesn’t mention constructive trusts or resulting trusts for instance.
Trusts are very complex and are legal relationships, I am not sure why people go to accountants for advice on trusts or asset protection as this is law – outside of the accountant’s knowledge or licencing – why did you go to an accountant?
Whether you should use a trust or not will entirely depend on your situation, where the property is and what you are trying to achieve. You should seek specific advice from a lawyer.
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
the property couch podcasts are generally good – but not this one. Best to avoid it.
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 IvanCan I use my personal name(i.e. as individual) as trustee for the time being while I get a company set up and then switch trustees later from my personal name to that of my newly formed company?CheersNathan
Get some legal advice.
A trustee possibly can be changed, but the consequences need to be considered such as:
– Who has the power to change
– control
– stamp duty
– changing titles
– reapplying for loans
– serviceability down the track
– change of company and stamp duty down the track.
– costTerryw | 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
No need to cross collateralise – because you can do the same thing without.
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
@zen007 – if the trust isn’t in existence when you enter into the contract you may have to pay double stamp duty. @terryw
On a contract of sale for the purchase of land – but there is no duty on mortgages anymore in NSW – or elsewhere I think.
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
Well you might be able to sue someone for the loss you have incurred so make sure you get some 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
it might, but may also be a fault of others such as the builder. you should probably consult with a strata lawyer such as gracelawyers.com.au
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
Why do you think the body corp is responsible for repairs to your unit?
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
a caveat is not a form of security. just a notice that someone has some equitable interest in the property. So you could allow a trustee to lodge a caveat, but if there is no interest this would be ineffective. You could have some sort of agreement with the trustee whereby the land is charged to the trust. This could be like giving an unregistered mortgage with the caveat notification of the mortgagee’s interest in the land.
If you are thinking asset protection there are many other things to consider especially the bankruptcy act.
It is nothing like transferring 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
You would simply go back to the same bank and ask to borrow more.
You could increase your loan to 80% LVR or go up to 90% LVR with LMI payable (but a credit received for the amount already paid).Make sure you consider the tax aspects of loan structuring – you would probably want to refinance the $50k used from the LOC so that you can use this LOC for the next property. Make sure all loans have only 1 purpose – no mixing.
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
It doesn’t matter about your brother – but when you moved out.
Are you claiming any other property as the main residence? If not then you might be able to claim an exemption for part of the time.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 should seek proper tax advice.
You will need to apportion the land over the 2 halves taking into account any remaining house. You will need to pay a valuer to do this as it will be unlikely the that 2 halves are identical – they may have different aspects, views, positions, neighbours etc.
Any expense relating solely to one block would be an expense against that block.There is no calculator for this sort of thing.
Also consider – does CGT even apply? It could be revenue.
And GST.
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