Don’t make the same mistake in property investing in real estate!

Lawyer Rob Balanda pulls more property investment warning stories from his filing cabinet, so you can learn from the mistakes of others. This was published for the Australian Property Investor magazine in February 2007 (apimagazine.com.au)

Trading Properties

I received a call from a real estate investor who had been sitting on an old fibro cottage in an areas which he though would be a prime redevelopment real estate site. He had been watching real estate prices rise and rise but in the past year or two they’d slipped back.

He didn’t find this out until he put the real estate property on the market at what he thought would be a record price, only to find out that the real estate market hadn’t rung a bell when it hit the top, and he’d missed the upswing. Keen to see the real estate property investment, but with unrealistic expectations about its value in the market, he placed an ad in the exchanges and trades section in the real estate part of his local newspaper.

As luck would have it he found someone with a similar problem and he agreed to exchange his real estate property for another person’s expensive unit. The exchange got him out of a property investment that he no longer wanted but he didn’t have the cash fro the sale to, for example, pay his capital gains tax.

I also gave him a fright when I told him the amount of stamp duty he’d have to pay on the expensive unit that he was trading for. He then suggested to me that we should “write down” purchases prices of both real estate properties to save him and his co-investor a bit of stamp duty and a lot of tax. Wrong.

My advice to him was this was a definite no-no and I strongly urged him not to do it. The reasons I gave him were as follows:

1. Firstly, writing down the real estate purchase prices deprives the Australian Tax Office of revenue and this is considered fraud.

2. Secondly, the Office of State Revenue is entitled to stamp duty on the real estate purchase price of the traded property investment or its value, whichever is greater, and by writing down the purchase prices he will deprive them of revenue.

3. Thirdly, as he was transferring a loan from the fibro dwelling to the real estate unit this created all sorts of problems for him and his lender. Lenders base the amount they’re advancing on the value of the real estate property or the purchase price – whichever is lesser. If he wrote down the value, the lender wouldn’t be able to transfer the full amount of the loan that he had on the fibro cottage over to the new unit.

4. Finally, and worst of all, you artificially create a lower cost base for capital gains tax purposes which could come back to haunt you in the future. For example, if you wrote down the value of the real estate property which was valued at $600,000 to a $400,000 sale price and you later sold the property after it had gained $200,000 (making it now worth $800,000), tax would be payable on the amount of $400,000 ($800,000 less $400,000). This is a huge mistake and the real estate investor wanted to do it to save himself a miserable amount of stamp duty. Forget it!

Option or first right of refusal on real estate property investments

A real estate property investor advised me that he and the owner of the property had agreed that he would have first option to buy this property in the next six months and asked me if I could do something simple to document this agreement. I asked him:

What was the purchase price for the real estate property investment should the first option be exercised?

When would the settlement take place?

What was the amount of the deposit?

I also asked some other questions about details that are normally included in a formal contract of sale for real estate property.

It was clear to me that he hadn’t agreed to take an option to buy the property investment, but had simply been given a right of first refusal. There’s a fundamental difference between these two concepts.

An option to purchase real estate gives the buyer of the property the right, but not the obligation, to buy the real estate property within, say, a six-month period. It allows the investor of real estate to put the property on lay-by and during the next six months make up their mind about whether they wish to purchase the property or not.

It’s essential however that the exact terms of the contract that comes into existence if the option is exercised are finalised at the same time the option is granted for that real estate property specifically, for example the purchase price, settlement date, deposit, etc.

A right of first refusal has been described by the High Court of Australia as “worthless”. It means that if the real estate owner of the property at some time in the future decides to sell the property – and they don’t have to – they agree to first advise you that it’s now available for purchase.

That purchase will be on whatever terms and price they determine and once they’ve made you aware that it’s for sale, then you’ve discharged their obligations to you. It’s for this reason the High Court says it’s worthless.

For more practical point of view, and not the lofty heights of the highest court in the land, the right of first refusal does have some value. It’s worth something to be the first person to know that a real estate property is for sale, as you can then at least take the initiative and attempt to buy it.

Rob Balanda is a partner of MBA Lawyers at Surfers Paradise and the author of the “Made Simple” series of publications available from Business Mall. Please note that this information is of a general nature only and does not constitute professional advice. You must seek professional advice in relation to your particular circumstances before acting.