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Conveyancing

Conveyancing

Buying and Selling Property through a Self-managed Superannuation Fund

By | Conveyancing

Judging by the press it is getting, buying and selling property through a self-managed superannuation fund (SMSF) is all the rage. But before you jump on the bandwagon, it’s important to understand what you are really in for.

Rules, rules and more rules

The single most important thing to be aware of before you take the plunge is that there are lots of rules for making these transactions. Here are just a few:

  1. You cannot buy and sell real estate through your SMSF trust deed unless it allows for such transactions.
  2. An SMSF must have at least one primary purpose. It can also have secondary purposes, as long as the fund is maintained to fulfill them.
  3. There are restrictions on ‘in house assets’.
  4. You cannot live in or rent any property purchased on behalf of  your SMSF.
  5. No one related to you can live in or rent any property purchased on behalf of your SMSF .
  6. You cannot take out a loan to buy property for the SMSF unless the superannuation fund trust deed allows it.

What does all of this mean?

Looking at the rules we’ve just listed, it’s easy to see that some are largely self-explanatory. However, some clearly warrant further explanation.

The so-called sole purpose test

Let’s begin with the concept of primary and secondary purposes for SMSFs. In most cases, an SMSF is established to provide retirement benefits for its members. If so, that is considered its primary purpose. A secondary purpose may be to provide benefits in case of illness.

So what does this mean if you want to buy real estate on behalf of your SMSF? Simply put, the purchase must be made to advance the fund’s primary and secondary goals. In other words, buying a rental property to generate income for the fund is fine. Buying a beachfront property to use as a second home, renting it out occasionally and keeping the income is not.

Provisions pertaining to in-house assets

Now let’s talk about in-house assets. An in-house asset is defined as any asset that a member or a member’s relative contributes to the fund. As a general rule, any such assets cannot account for more than five percent of the fund’s total value. However, there are always exceptions to this rule.

To clarify this further, let’s say your sister owns an investment property. You want to buy it and the two of you have settled on $250,000 as a fair price. Your SMSF has $500,000 in total assets. In this case, the investment property would be classified as an in-house asset. Assuming the sale went through, the property value would account for 1/3 of the fund’s total assets. In this case, the transaction would clearly violate the rule detailed above.

But now let’s say that you have your own business, and you own the property where it is based. Let’s also suppose that you want to transfer the property into your SMSF. Because the rule we detailed above does not apply to business real estate,  this is theoretically fine. However, there is a catch. You must:

  • Lease the property from your SMSF under a written lease; and
  • it is a commercial lease.

Additional stipulations pertaining to borrowing

As we have already noted, there are also rules pertaining to borrowing in order to purchase property on behalf of your SMSF. Here are a few more things to keep in mind.

  • Your only loan option is ‘limited recourse borrowing’.
  • This type of loan only allows for the purchase of one asset.
  • It tends to carry higher costs.
  • You must use SMSF funds to repay the loan.
  • There are potential tax implications.
  • You cannot make any changes affecting the property’s ‘character’ until the loan is paid off.

But what about selling property?

Yes, it is also possible to sell property on behalf of an SMSF. Depending on your circumstances, you may even be able to sell it to yourself.

Let’s say for example, that you need to get rid of the property because it isn’t generating enough income to cover certain obligations. Now let’s say that you’re also planning on moving soon. One option may be to have the SMSF sell the property to you for fair market value so you can live there during your house hunt. There is an important caveat, however. This is that you must pay any and all applicable taxes.

The bottom line

To sum it all up, using an SMSF to buy or sell real estate is complicated. Therefore, it is important to get sound legal and financial advice from qualified professionals. If you are interested in buying or selling property through your SMSF, we are happy to provide the legal advice and guidance you need to make an informed decision. Contact Felicio Law Firm today on (02) 4365 4249 or through our website to set up a meeting where we can discuss your needs.

Conveyancing QLD

What You Need to Know if You’re Buying or Selling Property in Queensland

By | Conveyancing

Buying or selling property is one of the most important transactions you can undertake in life. Besides the many hundreds of thousands of dollars involved, there is also the significance of the real estate asset as a family home, or an important income-producing investment. That’s why it’s important to get it right.

Below is a brief overview of buying or selling a property in Queensland. There are important legal requirements and repercussions all along the way during the purchase or sale of a property asset. The wisest course of action is to avail yourself of the services of a legal firm with experience in all aspects of such transactions, particularly the conveyancing of the property.

Buying a property

There are important legal considerations in three of the most common ways to buy property: at auction, off the plan, or through private treaty.

Auction: If you buy a property at auction it’s important to understand that if you’re the successful bidder, there is no cooling-off period. This means that you must settle the contract whether or not you have organised finance to pay for the purchase, conducted an inspection of the property, or then decide to change your mind.

The take-out is that you need to be prepared ahead of time. Make sure that before the day of the auction you:

  • Inspect the property;
  • get an independent property valuation (to ensure you don’t pay too much);
  • get your finance organised (based on the valuation);
  • get a copy of the sale contract;
  • get legal advice about the terms and conditions, in case you’re the successful bidder.

You should also try and find out from the agent for the property what deposit they will require if your bid is successful.

It should be noted that the cooling-off period also does not apply if, two days after bidding on the property at an auction in which you were a registered bidder, you enter a private treaty contract with the owner.

Buying privately: If you bypass real estate agents and agree to buy a property directly from a seller, ensure you have an experienced solicitor check any sale contract before you sign it. The contract should include a warning statement that provides for a five-day cooling-off period as well as a clause that indicates there will be a termination penalty of 0.25% of the purchase price if you, as the buyer, terminate the contract during the five-day period. You should also obtain an independent property valuation of the property and do your own research into the values of similar properties in the area. It is also up to you to arrange necessary inspections – building, swimming pool and pest – before signing the contract.

Off the plan: Buying a unit before it is finished has become a common occurrence in our big cities where there is intense competition for properties based on location. For a buyer, this means you are entering into a contract before the building is out of the construction phase and the title to the lot has been created.

As a result, a buyer needs to be wary of the risks involved. The seller needs to provide a buyer with a disclosure statement that provides essential details about them and you, as the buyer. It also needs to clearly identify the land or unit you are buying, including the proposed number, area and orientation of the lot. The statement should explain the proposed state of the lot at the time you will take ownership. As the buyer, you must sign and date the disclosure statement.

Legal advice should be sought before signing a contract, There are circumstances where you can back out of an off-the-plan contract, including ‘material prejudice’, where a change to the initial disclosure about the state of the land will cause you a significant disadvantage. Also check the contract for the terms of any sunset clauses, which place conditions and limits on the contract such as its cancellation by either buyer or seller.

Contracts of sale

When buying a property the contract should set out the price you are offering for the property; the details of how much and when you need to pay the deposit; and the time and date of settlement.

The contract is only binding once both the buyer and the seller have signed it. Be sure to have your legal representative see the contract before you sign it. The cooling-off period of five days applies to all residential property sales.

Once the contract is binding, you’ll need to pay the deposit within 2–3 days. If the sale is conditional, the contract might be subject to certain conditions such as the buyer organising finance, conducting a building and pest inspection, or finalising sale of their current property.

Selling a property

There is quite a lot to do when you decide to sell your property, from appointing a real estate agent (if that’s your choice) to sprucing up or renovating the property in readiness for sale. One of the most important tasks is engaging a legal professional with expertise in property transactions. They will make life a lot easier by drafting a contract of sale and help you complete any other disclosure documents. They can also help fix any difficulties with pre-settlement inspections, deal with settlement, and transfer the property title from you to the buyer.

Once a buyer makes you an offer for your property, the contract is only binding once you have both signed it. Before doing so you should be sure you can meet all your requirements under the contract, including passing on covenants and agreements to the buyer. Alternatively, you can reject the buyer’s offer by not signing the contract, or make a counter-offer.

A counter-offer is made by altering the contract to suit your terms and signing the updated document. The buyer can accept by initialling your changes, reject it or make their own counter-offer. Be sure to initial changes at every stage otherwise the contract may become invalid.

Any contract for sale should include the warning about the five-day statutory cooling-off period and the termination penalty of 0.25% of the purchase price if the buyer terminates the contract during the cooling-off period.

At Felicio Law Firm we have extensive experience and expertise in advising people whether they’re buying or selling property. Call us today on (02) 4365 4249 if you have any questions or to arrange an initial consultation.

Commercial Leases

What You Need to Know About Commercial Leases

By | Conveyancing

When it comes to the rental of commercial spaces, there is usually a lot at stake for everyone involved. The landlord is banking on finding the right tenant, ideally a viable business owned by a responsible person or entity that will have no trouble respecting the premises and paying the rent. Meanwhile, the tenant is counting on finding the right space in a convenient location that meets their needs and reflects their brand.

Here’s what all landlords and prospective tenants should know about commercial leases.

Classification of commercial property

To begin with it’s important to understand how commercial property is legally defined in New South Wales. It includes non-residential property such as:

  • office space;
  • industrial units;
  • workshops and warehouses;
  • storage sheds;
  • working yards.

You should be aware that retail space (located in a shopping centre or elsewhere)  is also classified as commercial property. However, you should also be aware that retail shop leases differ from other types of commercial leases. This is because they are subject to specific rules and regulations designed to protect tenants from exploitation.

Negotiation of commercial leases

In most cases, landlords and prospective tenants are free to negotiate the provisions and stipulations in commercial leases. The only exceptions to this are retail shop leases, for reasons noted above.

With that being stated, the following provisions are usually included in commercial leases:

  • how long the lease will be in effect and options for renewal (if any);
  • terms for payment of rent, increases in rent and so forth;
  • allocation of responsibility for necessary maintenance, repairs, enhancements and structural changes;
  • the extent to which the tenant can make structural changes and enhancements in the space to meet its needs;
  • tenant notification and other requirements associated with the landlord’s ability to access/inspect the premises;
  • mechanisms for addressing tenant breaches and circumstances in which the lease can be terminated;
  • restrictions/limitations on the tenant’s ability to sublease the space (if applicable);
  • the tenant’s responsibility to leave the premises in reasonable/satisfactory condition when vacating the space;
  • stipulations pertaining to damages, liability for damages and related issues;
  • stipulations pertaining to renovation or redevelopment of the property;
  • requirements for security deposits and related matters; and
  • the process for dispute resolution.

Some other things to consider

With so much at stake for both parties, it is essential that the lease is prepared properly and accurately reflects the negotiated terms and conditions. This lessens the potential for costly and unpleasant misunderstandings or disputes.

The best way to ensure that the lease document is executed properly is to have a qualified lawyer prepare it (for the landlord) and review it (for the prospective tenant). In fact, the latter should be sure to have an experienced lawyer review the lease prior to signing it.

Another thing for landlords to consider is enlisting a real estate agent to identify potential tenants, negotiate the lease and manage the property if need be.

Prospective tenants should bear in mind that they may be responsible for lease preparation fees along with your own legal fees. However, this is not always the case, and you should not be afraid to negotiate this issue along with other relevant stipulations and provisions.

In any case, landlords and prospective tenants should not hesitate to seek legal advice prior to signing a lease agreement.

Don’t leave anything to chance – contact us today

The legal team here at Felicio Law Firm is fully versed in all aspects of property law. This means our highly skilled Central Coast conveyancing lawyers are well equipped to answer any questions and concerns you may have about commercial leases. We can also help with the preparation of lease documents for landlords, and review lease documents for prospective tenants.

For assistance with these and other property matters, you can reach us by phone at (02) 4365 6069, or by email at admin@feliciolawfirm.com.au.

Don’t leave anything to chance. Contact us today.

conveyancing new south wales

What You Need to Know About the Conveyancing Process in NSW

By | Conveyancing

Conveyancing might seem like one of the less exciting aspects of buying or selling a property but it is a crucial and essential element of the process.

It can also be somewhat of a mysterious exercise, particularly if you’re a first homebuyer. The steps involved in conveyancing – the legal process involved in transferring a property from one person to another – is outlined below.

A smooth transfer is always the desired result, but this requires proper adherence to the process, including filing the correct documentation at the correct times. This process is made much easier when you consult a law firm experienced in conveyancing matters.

Before the contract of sale is signed

Say you’re the seller (or vendor) and have found a buyer for your property. The first step of the conveyancing process is the need to have a draft contract for the sale drawn up by your solicitor. You will also need to fill in and sign a number of legal forms from various government departments and source (or have your legal representative/conveyancer source) certain information to ensure the title deeds are in order; to detail any charges still owing on the property that may affect the sale; to prove the rates and charges are fully paid and up to date; and to detail whether any other restrictions (such as environmental regulations) exist over the property.

Sellers need to be aware this pre-contract stage can take a couple of weeks to complete. Once it is and all other terms such as the price are agreed with the buyer, both parties will need to sign the prepared contracts and proceed to the exchange stage.

Exchanging property

Once this process commences, the contract for sale becomes binding on the buyer and seller. Those managing the process for the seller meet with the representatives of the buyer to confirm the documents are the same and exchange the signed contracts. The contract is now legally enforceable and it is incumbent on both the seller and the buyer to comply with its terms or face certain financial penalties.

While binding, most contracts will also include a five-day cooling-off period (unless purchased at auction or, if the buyer is satisfied with the pre-contract negotiations, waived altogether). In this period the buyer can change their mind and cancel the contract, but by doing so they forfeit 0.25% of the purchase price to the seller.

If after signing the contract the buyer discovers some ‘adverse’ matter which affects the property, such as a new council regulation affecting development options, for example, they may have grounds to exit the contract. To do this the buyer will need to show the seller failed to disclose the adverse matter and also that they were unaware of the matter and would not have signed the contract had they known about it.

From the moment the contract is signed, its settlement will generally occur within six weeks or another period agreed to and set out in the contract. The buyer will also need to pay stamp duty within 90 days of the contract date or prior to settlement (unless a recipient of a first homebuyer’s grant or if buying off the plan).

Settlement

This final stage in the conveyancing process sees the buyer takes possession of the property and all remaining financial matters between the parties are finalised.

Before they take possession of the property, a buyer may conduct a pre-settlement inspection. If the property is to be sold with vacant possession, the seller will need to make arrangements to vacate the premises before settlement. The seller should empty the property of all possessions and leave it in a clean and tidy condition.

If it’s discovered there are any remaining issues regarding the property, settlement can be postponed until the seller addresses them but the contract itself, at this stage, can’t be terminated.

Ahead of the agreed settlement date, the buyer will need to organise the financial arrangements for payment of the seller. At an agreed time and place, the legal representatives of the buyer and seller will meet. The buyer will then pay the balance of the property’s purchase price, authorising the agent to release the deposit minus the agent’s commission. The seller then has to give the buyer the executed transfer document and title documents. Before this can happen, any existing mortgage over the property must be paid off and any caveats lifted.

The exchange must also be registered with NSW Land Registry Services in the new names of the buyers. If the buyer has borrowed to fund the purchase, the lender will instead take the deed, register the transfer, and then hold the deed until any mortgage loan is paid out. Provided all the documentation is in order, the keys and other access devices to the property will then be handed over.

It should be noted that the services of a conveyancer mean neither the buyer nor the seller need be present at this settlement stage.

The place of insurance

If there is an insurance policy covering the property, sellers are advised to keep their coverage until settlement is completed and then contact their insurance company if the cover is no longer required.

This is because the risk of damage to buildings or other fixtures remains with the seller until after settlement, unless the contract states otherwise. This means that any damage to the property after the exchange of contracts can give a buyer grounds to get out of the contract by giving notice in writing within 28 days of becoming aware of the damage.

Conveyancing can sound like a complex and drawn out process but it can be made much simpler by engaging trusted representatives who are experienced in this area. While you decide the big issues like price, financing and any restrictions over the property, they will do the legwork on documentation and timelines to ensure the transfer of property is as smooth as possible.

At Felicio Law Firm we offer a ‘Fixed Fee – No Ifs or Buts’ pricing structure (dependent on the property type) for all conveyancing matters, with many years experience in the process from contract to settlement on residential, rural, commercial, strata and industrial properties. Call us today on (02) 4365 4249.

Conveyancing 14 Resort Drive Hamilton Island

Conveyancing | 14 Resort Drive, Hamilton Island

By | Conveyancing

Conveyancing@ERINA  is a new Central Coast business initiative created to serve a need in the market for streamlined, cost-efficient conveyancing.

A ‘Fixed Fee – No Ifs or Buts’ pricing structure is offered to ensure you understand the total cost to complete your property transaction. Different fees apply according to the type of property being sold or purchased. These may include a block of land, a residential home, a unit in a strata complex, a business premise or commercial unit in a retail or industrial precinct, a rural lot in a subdivision or a unit in an aged care facility

See the listing online: