It is not uncommon for the ownership of property to be transferred between spouses and de facto partners, generally transferring the family home or a principal place of residence for asset protection. Sometimes it is to merge assets in a relationship.
Such transfers are described as being for “natural love and affection” rather than a dollar amount in official documents.
In Victoria, couples can freely transfer property to their spouse without paying land transfer duty (stamp duty), however transfer duty does apply to investment properties.
We outline the process of transfers between related parties here.
A transfer for nil consideration or money is also called a “natural love and affection” transfer. It gets its name from the wording used on the Transfer document as no dollar amount is used.
In recent years, the Victorian State Revenue Office made changes to pay stamp duty rules and which property transfers between spouses attracts stamp duty.
Only a Principal Place of Residence of the couple can be transferred without having to pay land transfer duty.
Just as property can be transferred in instances of marriage and de facto partnerships, property can be transferred where there is a breakdown of a relationship. No stamp duty is payable for a breakdown of relationship.
Likewise, property transferred by way of a bequeath of a will does not attract any stamp. However, time limits of the transfer apply.
For parents wishing to transfer property to children or related parties, unfortunately, land transfer duty is payable.
To be eligible for the stamp duty concession, you must meet the following requirements:
The transfer of the Principal Place of Residence must be for no consideration i.e. no money changing hands.
a. secure the same or a greater amount as the amount outstanding immediately before the transfer, or
b. assumes the liabilities under the mortgage.
You cannot enter into these mortgage arrangements just to be eligible for the not paying transfer duty.
The Commissioner will consider and be satisfied that this is the case if the mortgage was:
It is important to comply with the legislation in place as these transactions are carefully reviewed by the SRO.
You can transfer property between related parties or unrelated parties at any time. The process is like buying a house and sometimes a contract can be drafted for more arms-length transactions.
The process can be done very quickly if all the requirements are completed, such as verification of identity or mortgagee consent.
In some instances, the State Revenue Office may need additional time to carefully review the duty application to ensure each party has satisfied the requirements to the duty concession, this often causes a delay in completing the transfer.
A delay may be caused by the lender and/or financier. In some transfers between spouses, a mortgagee will be happy to consent to transfer of the title into one of the spouses name. It can be the case that both of the spouses are still liable for the mortgage, but only one person is named on the title.
If you have to refinance or get a new mortgage, this will take a little longer usually as you need to go through the finance approval process.
If you have several properties cross-collateralised this may impact the time in which a transfer can be done. Often with cross-collateralised properties new valuations need to be done so the lender is sure of their loan-to-value ratio. Sometimes clients are not aware of this requirement and don’t factor in the additional delay this can cause.
If you are considering buying or transferring a property for your children or gifting property you should consider their relationship status. A transfer from parents to children is easily done, but this may not be the best option. Family law in Australia provides your children’s spouse or de-facto a share of your children’s their assets. There are ways to protect assets and minimise the claims made by your children’s partners.
Careful consideration should be taken to ensure that if you are transferring property to your children it remains with your family members as much as possible.
Transferring a personal property to your SMSF or a Trust is possible. Trusts don’t hold property, but are noted in other legal documents concerning the trust and with the SRO. This is important, you will need to pay the SRO Land Transfer Duty to transfer the property.
For this reason it is important when buying a property to get the right advice regarding asset protection.
At Conveyancing Depot our lawyers can help you get the right advice.
We act for many clients who need property transferred due to love and affection or a relationship breakdown or divorce.
If you need assistance with transferring a property, contact one of our team. We are experts in helping people in property transactions and conveyancing.
Call us on 1300 900 400 or complete an online form and we will get back to you quickly.
Disclaimer: This article has been prepared for general information purposes and may not apply to your situation. This information should not be relied upon for legal, tax or accounting advice. Your individual circumstances will alter any legal advice given. The views expressed may not reflect the opinions, views or values of Conveyancing Depot and belong solely to the author of the content. © Conveyancing Depot Pty Ltd.
If you require legal advice specific to your situation please speak to one of our team members today.
Jessica is an experienced conveyancing lawyer and has enjoyed helping many clients buy and sell...