The legal side of buying property can be confusing. The legalities may confuse you even further if you’re buying an investment property through an SMSF.
SMSF conveyancing differs from standard conveyancing and we recommend hiring a property lawyer who is skilled in SMSF conveyancing to facilitate the purchase.
To help you understand the basics, here’s a quick guide to the difference between standard conveyancing and SMSF conveyancing.
What is property conveyancing
Conveyancing is the process of transferring the ownership of a property from one person to another person. Conveyancing involves:
- Preparing and submitting all required legal documents such as the contract of sale, vendor disclosure and memorandum of transfer
- Evaluating the property and checking the title
- Holding the deposit
- Assisting with calculating rates, taxes, stamp duty and registration fees
- Facilitating final settlement
How does SMSF conveyancing differ from standard conveyancing
Buying property through an SMSF comes with a different set of rules which makes the conveyancing process slightly different.
Here are 4 ways SMSF conveyancing is different to standard conveyancing.
1. Proving the property is for investment purposes only
By law, buying a property through an SMSF should be for investment purposes only. You will need to provide proof that you comply with the ‘sole purpose’ regulation, i.e. the purchase of the property is for the sole purpose of providing retirement funds. Neither you nor any other members of funds or their families can live in the property.
2. Purchasing with borrowed funds can lead to settlement delays
With SMSF conveyancing, settlement may be simple or complicated, depending on whether you purchase with cash or with borrowed funds. If it’s a cash transaction, the process is straightforward. If you borrow funds, the process can be more onerous.
First, the property will be placed in a trust known as a bare trust or custodian trust and remain there until the loan is repaid.
Second, settlement will take longer. With standard conveyancing, settlement typically takes 30-45 days. With SMSF conveyancing, loan approval can take up to four weeks and the final settlement may take a further 3-4 weeks thereafter.
Your SMSF conveyancer will facilitate all of this and determine how long the process will take so that all parties have a realistic timeframe in mind.
3. Purchasing the property in the wrong name hinders the conveyancing process
Make sure your SMSF is set up before you purchase property, so the property is held in the name of the trustee right from the start.
Some buyers purchase the property first and then establish their SMSF afterwards, resulting in the property being held in the wrong name. This hinders the conveyancing process and may result in higher stamp duty fees.
4. Paying additional SMSF-related fees
When buying property through an SMSF, there are fees and charges associated with the purchase, ownership and sale of the property that you won’t have in a standard residential purchase. Your conveyancer will calculate all fees and advise you accordingly.
Why you need to hire an SMSF conveyancer
Unless you’re trained in property law, it’s risky to handle SMSF conveyancing yourself. Should you omit information or make errors, it can be costly to correct and will delay the completion of the transaction even further.
Sutton Laurence King are a Melbourne-based law firm that specialises in residential and commercial property conveyancing. To schedule an appointment with one of our experienced lawyers, email us at firstname.lastname@example.org or call on 03 9070 9810.