Property Settlement (Separation, SMSF, etc)

[bbmick]

A family member (who is around 70yo) is currently in the process of being separated (under the same roof) & lives in QLD.

Although the parties haven't agreed on a property settlement as yet, the other party (husband) has decided to put one of their rentals on the market using an agent without telling the other party. Property is held as "joint tenants" in Vic.

Question 1
I'm assuming that BOTH parties would need to sign for title transfer if sold, but can only one party sign up an agent to sell the property? And who would incur the fees?

Question 2
This time, another property they own - BUT in a joint SMSF.
Can the SMSF transfer the property to the other party as part of settlement for them to live in? Would stamp duty or CGT be involved?

Although she has legal representation, I'd still like to try & find out as much as possible for her so she can make sure not being ripped off as I'm not sure if the local legal guy she has is specialist family or property etc. I know things can be very tricky with property as many tax implications and some things can come back to bight her on the backside if not aware up front when negotiating a settlement.

Question 3
They have other rental properties as "joint tenants".
Is it correct that in this type scenario, if a rental property is "transferred" to one of those on the title for a settlement that the total CGT of that property also gets transferred along to the person receiving?

Thanks for your time.........

 

[Terry_w]

1. No. both have to sign. Watch out if one has a power of attorney for the other.

2. Trustee of the SMSF would be the legal owner - which sounds like both of them. Both would need to sign documents. Stamp duty would depend on the state. CGT may be exempt because of their age.

3. Transfers under a marital breakdown are done without triggering CGT. But this is inherited by the one receiving the property.

Also consider that on death of a JT the survivor automatically inherits. The property doesn't even pass under the will.

Wills should be redone asap anyway.

 

[Raddles]

Hi there
often in this sort of situation the first step is to change any joint tenancy to tenants in common - to ensure each party (and their beneficiaries under an estate) benefit equally from the property
A good family lawyer will be up to speed with these sorts of things

 

[bbmick]

Thanks guys...........

Terry, there's no power of attorney involved.

So what would a RE agent do in this situation? Would he be operating based on a promise of signature from the other half or could he be operating outside the law?

Could he conceivably market / sell the property & then worry about the other signature when actually sold (or buyer found) or somewhere else down the track?

I guess what I'm asking is.....Can the marketing etc of a property be actually separate to actually preparing a contract, where of course, both parties (vendors) would need to sign?

 

[Raddles]

Hopefully the RE agent gets authority from both parties

I must admit when I read this I thought there possibly could be fraud involved (i.e. a signature has been forged?) - which unfortunately is not unheard of in situations like this

Perhaps your family member should be contacting the RE agent to advise the situation

 

[bbmick]

Hi there
often in this sort of situation the first step is to change any joint tenancy to tenants in common - to ensure each party (and their beneficiaries under an estate) benefit equally from the property
A good family lawyer will be up to speed with these sorts of things

I've read about this also.

Just to clarify also.......This is a second marriage.

I don't believe either party has done this (at this stage - according to my 3week old title searches), and the beneficiaries on wife's side are not too worried about it as they don't really expect or want anything. On the husband's side there are no children & appears everything is to go to a particular church.

Personally, I was actually concerned that it might be transferred to a tenants in common as then the husband could possibly (although not easily) borrow against his half of the property, so although it can be safer for beneficiaries of a will (especially at their ages), it could be worse for the actual person concerned.

At least my thinking anyways.

 

[Raddles]

You would have to ask the finance brokers on the site - but I would have thought it more difficult to obtain finance with a family law dispute - and only the 1/2 share in the property being available in the event of a default.

 

[Terry_w]

Thanks guys...........

Terry, there's no power of attorney involved.

So what would a RE agent do in this situation? Would he be operating based on a promise of signature from the other half or could he be operating outside the law?

Could he conceivably market / sell the property & then worry about the other signature when actually sold (or buyer found) or somewhere else down the track?

I guess what I'm asking is.....Can the marketing etc of a property be actually separate to actually preparing a contract, where of course, both parties (vendors) would need to sign?

The Real Estate agent couldn't enter into a contract with only one party. Or if they did then it wouldn't be enforceable against the non participating party (i am only guessing here). THere would be no point anyway as the transfer couldn't be registered without signatures of both parties.

You don't know what has been told to the agent. Spouse sick or overseas and will be back soon etc.