It’s part of being a family that parents, children, siblings and other relatives willingly accommodate each other’s needs as life changes. Parents allow adult children to move back home after the loss of a job; brothers and sisters open their homes to one another when someone needs a place to stay after a job relocation. Children concerned about their ageing parents make room in their homes in a ‘granny flat’ arrangement.
The only trouble is that many of these accommodations are reached through informal agreements, leaving plenty of room for disputes, misunderstandings and wrecked relationships.
This is why it’s so important to consult a lawyer, whenever possible, before making these accommodations. We can help you draft agreements that everyone understands and agrees upon. Or, at the very least, we can give you the information you need to make an informed decision about the issue at hand.
With that being stated, here are a few things that older parents should consider before moving into a granny flat.
The legal classification of a granny flat
To have even a basic grasp of this topic, it is important to understand the legal classification of a granny flat.
For the purposes of a granny flat agreement, a granny flat is broadly defined as “a designated room or area that allows for a parent’s exclusive occupancy” created in accordance with a relevant agreement. This means it may be anything from a separate dwelling on an adult child’s property to a flat incorporated within an existing home. It could even be a loft room, duplex, or a room in an existing apartment.
What is a granny flat agreement?
A granny flat agreement is made when an adult child allows one or both of his or her parents to move into the adult child’s home.
The adult child generally makes this provision in return for some type of payment. Depending on the circumstances, this may include the transfer of the parent’s residence. In other cases, however, the parent/parents will provide funds for the construction of a granny flat at the adult child’s home. Because an older parent’s care requirements often prompt the consideration of a granny flat, provisions for such care may also be included in the agreement.
Although terms are predicated on individual circumstances and vary accordingly, a granny flat agreement must create a ‘granny flat interest’. In other words, there is a legal obligation for the transfer of assets or money to the person (adult child) who owns the property where his or her parent will live, in return for a life tenancy or interest in such property.
Specific considerations with regards to care provisions
As we have just noted, many granny flat agreements include provisions for an ageing parent’s care. However, such provisions are not mandatory.
Legally, a granny flat agreement can include simple provisions for the older parent’s accommodation without provisions for care. But if you are considering this option, you should be aware that it can cause long-term complications. This can happen if the parent/parents are still fairly spry when they first move in, but their health declines suddenly. Such an unanticipated turn of events can then create significant financial and emotional stress for everyone in the household.
Accordingly, everyone in the household should be informed about the provisions being considered and potential repercussions. In the interest of fairness and transparency, the adult child’s brothers and sisters should also be advised, even if they are living elsewhere. By consulting his/her other siblings, the adult child involved in the granny flat agreement can dispel any misconceptions about favoritism.
Within this context, lawyers often suggest that their clients allow all relevant family members to read and consent to the agreement. By doing so, they say, the adult child who is directly involved in the agreement can lessen the chances of future misunderstandings.
What about Centrelink?
Another issue that must be taken into account is how a granny flat agreement affects any Centrelink benefits, particularly where the elderly parent is on a pension. This is because the agency has a specific set of (complicated) rules pertaining to these arrangements.
Compliance with these rules ensures that there are no adverse effects on someone’s pension. But because lack of compliance or even a simple mistake can have serious consequences, it is important to get the proper legal and financial advice before entering into a granny flat agreement.
It is also important to consult Centrelink about relevant rules, especially if you have questions or need clarification. For example, there are some circumstances in which the gifting of assets or money may violate the gifting or deprivation provisions of the Social Security Act 1991 (Cth). But there are also some circumstances in which this is not the case.
A case where there’s no violation
There is no violation of the deprivation rules if payment for the granny flat interest is:
- A transfer of title of the parent’s home;
- covers the cost of the construction and fit-out of the granny flat;
- a property purchased in someone else’s name.
Exceptions to the rules
Exceptions are made when Centrelink values the granny flat interest differently. This happens when the agency makes a determination based on ‘the reasonableness test’. In this method, the value is assessed at a different amount to what is actually paid for the life interest. It is typically used in the following circumstances:
- When the home and additional assets are transferred;
- when payment is made for construction and fit-out of premises and there is a transfer of additional assets;
- someone is using the granny flat rules to enhance their social security benefits.
Tax implications
Tax implications must also be taken into account when considering a granny flat agreement. Why? Because some of these agreements may be subject to capital gains tax in accordance with an Australian Taxation Office ruling no 2006/14. This is most likely to happen when you, as a parent, pay your son or daughter a specific amount in exchange for the right to live in the latter’s home or to construct a separate granny flat there.
This may seem counter intuitive since our principal place of residence is usually exempt from any taxation implications, especially capital gains tax. Because this issue tends to generate so much confusion, we must reiterate how crucial it is for all parties involved in a granny flat agreement to seek advice from qualified professionals prior to finalising the agreement.
In summary
For adult children, providing a safe place for their elderly parents to live is a way of returning the love and care their parents have always provided. While it may seem simpler to make these accommodations without a formal agreement, doing so can often open the door for future family disputes. On the other hand, a granny flat agreement allows for specific provisions that everyone can agree upon.
As we have detailed, however, these agreements are not without complexities. If you are considering a granny flat agreement, we can help. Contact our Erina & Central Coast family lawyers at Felicio Law Firm on (02) 4365 4249 to learn how, today.
