Transfer property to spouse, child, sibling or trust in NSW

NSW Property Transfer Conveyancing Process

Property transfer process in NSW is explained below.

1. CONVEYANCING ADVICE & FINANCE APPROVAL

YOUR TO-DOs

• CONVEYANCING ADVICE
  Please call us to discuss your transfer matter & establish clear fixed upfront charges.
  
  
• PROVIDE PROPERTY INFORMATION
  We will ask you for relevant information regarding the property, transferor & transferee. This information is required for us to provide accurate advice.
  
  
• PROPERTY TRANSFER PRICE
  If required, the transferor & transferee agree on a property transfer price.
  
  
• DISCUSS TRANSFER WITH YOU BANK
  If there is a mortgage on the property then you must discuss the transfer with your bank. The person receiving the interest in property must also discuss the transfer with their bank & get a home loan approval.

OUR TO-DOs

• STAMP DUTY & LAND TAX IMPLICATIONS
  We'll review your situation thoroughly and then provide our feedback including stamp duty & land tax implications.
  
  
• ASSIST YOU WITH STAMP DUTY
  If stamp duty is payable, then we assist you in completing the relevant paperwork & in paying the stamp duty.
  
  
• STAMP DUTY EXEMPTION
  If your transfer is exempt from stamp duty then we'll assist you in completing the stamp duty exemption paperwork.
  
  
• TRANSFER DOCUMENT
  We prepare the transfer document and send it to you for signing.
  
  
• LIAISE WITH YOUR BANK
  We will liaise with your bank to ensure they are ready for settlement.

2. PROPERTY TRANSFER SETTLEMENT

YOUR TO-DOs

• SIGN TRANSFER 
  We'll either send or organise for you to sign the transfer documentation. Please sign & proceed as per our instructions.
  
  
• MORTGAGE DOCUMENTATION
  If you're discharging a home loan and/or are getting a home loan then please complete & sign your bank's paperwork.
  
  
• STAMP DUTY PAPERWORK
  As applicable, we'll assist you with stamp duty paperwork. If we send you any documentation, please sign & proceed as per our instructions.

OUR TO-DOs

• PROPERTY TRANSFER SETTLEMENT
  We'll ensure that the property transfer settlement occurs as expected. If there are any monies to be transferred, we'll assist with that.
  
  
• STAMP DUTY
  If stamp duty is payable, then we ensure it is paid as required.
  
  
• TITLE DOCUMENT
  If there is no mortgage involved, we'll forward the Title document onto you upon receiving it.
  
  
• RETAIN YOUR PROPERTY TRANSFER FILE FOR 7 YEARS
  If you decide to sell the property or another transfer is required, having your file makes the process easier.

If you’re - by yourself or jointly with someone - receiving a part of or whole property, it’s best to have a mortgage approval in place. If there is a mortgage on the property being transferred, this mortgage has to be discharged.

This is a generic process & is not legal advice. Please discuss your specific situation with us.

Transferring property to spouse or de-facto when they are together.

It is not unusual for partners to want to add their loved ones into the title of the Property that they already own. This is one of the more common scenarios that we come across. In such situations, the Transferor and Transferee will need to provide us with proof of their relationship during the transfer. De facto couples must be living together for at least 2 years before applying for this exemption.

Transfers between family members are liable to transfer duty, however some transfers may qualify for a exemption or concession. We can often act on both Transferor's & Transferee's behalf in such transactions because the parties should be giving uniform instructions. Foreign transferees who are eligible for this exemption must still pay surcharge purchaser duty at 8 percent of the value of property they receive.

No transfer duty is payable where a transfer of residential land is between a married couple or de facto partners and the property being transferred is either the family home (principal place of residence) or vacant land which is intended to be used as the site of the family home. As a result of the transfer, the property must be held equally by both partners of the relationship. If you’ve already paid transfer duty but were entitled to an exemption or concession, you can claim a refund for up to five years.

Transfer due to a breakdown of marriage or de facto relation or domestic relationship or divorce?

You can get exemption from paying transfer (as stated above) under the conditions that the property must be transferred to the partners in the relationship or either of them or a child or children of either partner, or a trustee for the child or children of either partner.  

Also, usually capital gains tax (CGT) applies to any change of ownership of an asset. But, if the transfer an asset to your spouse or de facto or domestic relation is because of the breakdown of your marriage or relationship, then you may be eligible for a rollover (the person who is receiving the property will get the capital gain or loss when they eventually sell the property for example) of the asset.

We will only be able to act for one party in a Property transaction involving a breakdown of marriage / de facto / domestic relationship if there is a Consent Order / Binding Financial Agreement in place. If the parties are separating without the need for this formal documentation AND the clients are in communication with each other, then it is fine for us to complete the transaction acting for both sides. Note, a domestic relationship is one where two adults who aren’t married live with each other to provide care and domestic support.

Transfer between family including parents, children & siblings?

It is not unusual for parents to want to gift or sell at a reduced price a property that they own to their children as a way of setting them up. In such situations, we can act on both sides because the parties would likely be in an amicable relationship with each other.