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Gents and Trust Expert 'Terry'
Trust is giving me sleepless nights !! (spending too much time on internet research)
1) Steve book says you can increase your borrowing capacity by using multiple trust and multiple lenders to source loan. This is because guarantees are not treated as debt by lenders. By this thread rubbish that. http://somersoft.com/forums/showthread.php?t=75798
So what is the truth?
I am looking for first IP with budget of <350k. PAYG employee (less chance of being sued). Both husband and wife in high tax bracket. Only reason I was looking to go for Family Trust is that it will increase by borrowing capacity which in turn will help me own multiple CF+ properties. (I dont asset protection will be a big issue for me). If borrowing capacity will not increase then it does not make sense to me to setup trust and pay land tax. Better to buy against spouse as (she is currently debt free. I own PPOR and its loan) Suggestions?
2) I understand advantages of Unit Trust (avoid land tax, transfer to super before retirement and earn tax free rental/Cg) but for a starter it is really wise to invest money in Unit Trust or just buy residential property on individual name?
Thanks for your advise !!
It's not rubbish, there used to be a few lenders that would except trust profit or loss in their servicing calculator rather than placing the rent and interest expense or debt. This was helpful because most lenders only include a portion of rent and benchmark up interest. There are far fewer lenders post GFC that do this, but most commercial lenders will allow loan proposals to be structured this way still.
Trusts don't assist borrowing capacity in my opinion.
A unit trust offers little asset protection, but what it does offer is flexibility.
The different, day to day, in owning in a personal name or owning in a unit trust with a person owning the units will be very similar. Almost same tax treatment, especially of you borrow to buy the units.
But hte flexibility if offers is much wider – the unit trust offers:
– the refinancing principal
– the ability to transfer units at less or no stamp duty, without needing to change the title deeds
– the ability to transfer units to a SMSF (impossible with residential property if owned by a person)
– ability to put in a discretionary trust later on
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
Hangon, I have to disagree with myself here.
Having a trust can improve borrowing ability. Imagine if you buy a IP1in your own name.
You later suffer a credit blemish, you have heaps of equity, but cannot access it to pay out a judgment (for example). You must resort to selling or using a non confirming lender.
But if you had a trust with a company as trustee. You just resign as director and replace the position with your spouse and refinance.
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
Got it Terry but for beginner in IP world, do you recommend trust kind of structure? Is it not advisable to start with IP on your own name and then see how it goes for first 6 months and then decide whether to go for trust or not from 2nd IP onwards?
Well it depends. You should really have only one property per unit trust for a variety of reasons.
If you buy the property in your own name then it is stuck and you cannot get all the other benefits of a unit trust.
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
proogle wrote:Got it Terry but for beginner in IP world, do you recommend trust kind of structure? Is it not advisable to start with IP on your own name and then see how it goes for first 6 months and then decide whether to go for trust or not from 2nd IP onwards?It's a tough one.
I speak with so many people that have set up complicated, expensive structures because they read in a book that it was the way to go when it didn't necessarily suit their individual circumstances.
Trusts certainly have their place – but I don't think they're for everyone.
Before forking out any cash you should really consult with a professional who's going to provide impartial advice that's specific to your situation. If in Sydney, Terryw is obviously the go to guy.
Cheers
Jamie
Jamie Moore | Pass Go Home Loans Pty Ltd
http://www.passgo.com.au
Email Me | Phone MeMortgage Broker assisting clients Australia wide Email: [email protected]
Great advise for free. I love this forum
MK, I think we are in same boat looking for first IP and wondering right structure for beginners.
I would suggest that if you can afford, go for Unit Trust for its long term benefits, otherwise keep it simple and purchase on individual names and review it after 6-12 months.
Good Luck.
Can I stress that you shouldn't set these structures up on your own. Seek assistance because I have seen a number of problems arise such as
1. Hybrid set up by online deed. The person borrowed in the wrong name – massive lost tax losses which are unuseable.
2. Settlor was main beneficiary's son!
3. Invalid unit trust because trustee and unit holder was the same
4. Unit trust hit with land tax because it wasn't a fixed unit trust
5. extra guarantees needed because old mother named in trust deed.
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
Flexiblity is the key
Many put the negatively geared property in the high income earners name. Which is great, unless you get capital growth and when you go to sell it, CGT is at top taxable rate.
Discretionary trusts are bad for Land Tax in some states (Hello NSW)
I love it when other people's clients have stuff in personal names. When I am putting together a commercial litigation case ,there are often multiple parties that have done wrong or partners etc. We will sue all parties. It is not really our job to apportion blame, we are out to get damages for our clients and don't really care who pays. But it is very reassuring when one of the parties that have all these properties in their personal names that comes up on our searches. It is possible some of the other parties have $2 companies and no assets, so a judgement against them is worthless, but the smart cookies who have used their own names for all this residential stuff, they look like having to cough up. There can be findings that the parties were "jointly and severally liable", like is the case for partners. Each of you are up for the whole debt/judgement if the other party was a $2 company and you were in your own name, you pay the whole amount.
You do not know what you are going to be doing in 10 years time, if you are holding property in your own name or do business in your own name, it is risky. In 10 years time it will likely still be very expensive to get your property out of your name and into a trust.
You need specific advice, from someone in your own state or who practices accross borders in that area.
good luck
D
RPI | Certus Legal Group / PRO Town Planners
http://www.certuslegal.com.au
Email Me | Phone MeProperty Lawyer & Town Planner
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