Property Invested in Your SMSF - Avoid the Common Traps

We have seen a lot of traps investors have fallen into when dealing with property investments in their SMSF. We have explained the basics of what to watch out for here...

Property and Self Managed Superannuation Funds

Routinely, we are asked to review work undertaken by other professionals in relation to properties owned in superannuation funds. Surprisingly, a decent percentage of these properties are incorrectly held or there are errors in the ownership, which may result in a notice of non – compliance being issued upon the annual audit of the fund.

The acquisition of a property into a superannuation fund is a very specific area in which any professional advisor needs knowledge of both property law and conveyancing as well as knowledge of the restrictions placed on the superannuation fund in their ownership of the property. Some common problems that we have found include:

1. Ownership in the wrong legal entity

The property must be owned by the correct entity in the correct capacity. If you require borrowings or finance in order to undertake the purchase, then the property cannot be held in the name of the superannuation fund. There must be a Bare Trust in place and the Bare Trustee holds the property on behalf of the superannuation fund.

The property cannot be held in the name of the superannuation fund with a mortgage registered on the title to the property. This is a very common error and a costly one when you are then required to transfer the property to the correct entity to avoid significant penalties in your superannuation fund. This may mean payment of stamp duty on the full value of the property in order to correct the error.

2. A lack of consideration of the purpose of the purchase

We have come across people who purchased property in their superannuation fund with the intent to develop or renovate the property and to use finance to do so.

This is not able to be undertaken under the current legislation and may mean that if the reason for your purchase is not properly considered by your professional advisor, you are left with a property which is not able to be used for that purpose.

A further example is that we have routine enquiries from clients who wish to use their superannuation fund to purchase a property for themselves or family to live in on a residential basis. Again, this is not allowed under the current rules and may result in a contravention notice being issued against your fund, with associated penalties.

3. Incorrectly prepared Bare Trust Deeds

We have also come across many Bare Trust Deeds, which were not prepared correctly by the professional advisor and do not comply with the ownership requirements. Unfortunately, this means both time and money must be spent in order to rectify this issue in order to ensure that your fund remains compliant.

4. Incorrect entities named on the Property contract

Many times we also come across the wrong names listed on the Contract for Sale of the property. In one case, neither solicitor nor the bank noticed the error until the fund was audited by Ascendia. Unfortunately, by this stage, the error was not able to be rectified quickly or cheaply for the client and they needed to undertake significant and protracted action in order to correct the error.

Don’t put your superannuation and retirement lifestyle at risk by using professionals who are not appropriately skilled in the area. The team at Ascendia includes lawyers, accountants and superannuation experts who work in concert to ensure that your superannuation fund is both legal and compliant and will allow for a stress free annual audit of your fund.

Please contact our office to discuss any property matters in your superannuation fund in order to ensure that you have the correct advice the first time. 

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