Transferring Property

A property transfer changes the legal ownership of a property. Sometimes interests in property are transferred for reasons other than a typical sale/purchase transaction, for example, when transferring an interest in property after an owner/co-owner dies or pursuant to a Family Law Financial Agreement or Court orders. Shares in property may also be transferred to protect assets or where property is gifted to children or other family members.

The transfer of property typically triggers transfer duty liabilities and may also have tax implications, so it is essential to get the right advice up-front and complete the correct documentation. We can prepare the necessary documents for the transfer of the property, and assessment of transfer duty, and lodge the transfer for registration. Consulting your accountant to ensure that you understand any tax-related and other financial issues is also important.

Deceased estates

Where a deceased person owned real estate, it will be necessary to take steps to transfer that property in accordance with the survivorship provisions where property is held in a joint tenancy or the instructions of a will where the property was owned solely by the deceased person or with a tenant in common. In the absence of a joint tenancy and/or Will, the property will be transferred according to the laws of intestacy.

Where property is to be transferred following the owner’s death, an application is made with the relevant state titling authority. The correct form to be used and duty payable depends on the circumstances and the role of the party receiving the property (the transferee). 

Family law property settlements

After a marriage or de facto relationship breaks down, property may need to be transferred between parties pursuant to a formalised property settlement or a Court order. In these circumstances, you may be entitled to an exemption from stamp duty. To claim the exemption, your agreement to transfer property must be documented in a complying Binding Financial Agreement, or Consent Orders from the Court.

Severing tenancy

If you have purchased property with another party, at the time of purchase you will have elected to purchase the property as joint tenants or tenants in common. Where you own property as joint tenants, upon the death of a tenant, their share is automatically left to the surviving tenant/s. In contrast, tenants in common can leave their share of a property to anybody upon their death, as devised in their Will or subject to the rules of intestacy.

If you are a joint tenant and wish to leave your property to somebody other than the other tenant, it is necessary to sever the joint tenancy first. This can be done by filing the appropriate form, depending on whether all tenants wish to sever the joint tenancy or if only one tenant wishes to do so.

Property transfers other than a standard sale and purchase can arise for various reasons. Some can be quite complex, particularly where the transfer follows a relationship breakdown or dispute between the owners. In all cases, we suggest getting professional advice to ensure you avoid any pitfalls and understand the implications of the proposed transfer.

If you want peace of mind every step of the way for your next property transaction, contact [email protected] or call 02 9629 4800.