Buying an Investment Property through Superannuation
Understanding Limited Recourse Borrowing
In general, superannuation funds are prohibited from borrowing money. Limited recourse borrowing arrangements (LRBAs) however, are one of the exemptions.
A LRBA requires an SMSF trustee to take out a loan from a third party lender. The trustee then uses those funds to purchase a property to be held in a separate trust. Any investment returns earned from the property go to the SMSF trustee. If the loan defaults, the lender's rights are limited to the property held in the separate trust. This means there is no recourse to the other assets held in the SMSF.
Section 67 of the Superannuation Industry (Supervision) Act 1993 (SIS Act) contains the rules that enable superannuation funds to borrow to invest. The four conditions that must be met for LRBAs are:
- The borrowing must be applied to the acquisition of a single acquirable asset
- The acquirable asset must be held in trust so that the superannuation fund obtains a beneficial interest in the asset
- The superannuation fund has the right (but not the obligation) to acquire legal ownership of the asset
- The rights of the lender, or any other person, against the superannuation fund trustee in connection with default are limited to the asset (limited recourse loan).
Held in Trust
The property needs to be held in holding trust, a trust that only holds the property for the duration of the loan. These are bare trusts. Most lenders require the SMSF trustee to be a corporate trustee, the trustee cannot be the same company as the SMSF trustee company but may have the same directors as the SMSF corporate trustee (ie. members).
Since the SMSF must have the right to acquire ownership of the property, then the SMSF cannot purchase a property jointly with another party.
Limited Recourse Loan
Only the property purchased can be used as security for the loan.
Personal guarantees can be provided but are limited to rights relating to the property.
In general, there are 5 parties involved with a LRBA:
1) SMSF Trustee (most lenders require the SMSF Trustee to be a Corporate Trustee)
3) Hold Trust Trustees
In general, when the property is sold, the loan will need to be repaid. If there are any future borrowings, a new loan arrangement will need to be established.
Under Section 67B of the SIS Act, instances of when a property cannot be replaced are specified, these are:
- As a result of an insurance claim proceeds for loss of original property
- Replacement of title upon subdivision or rezoning
- Replacement by way of property improvement
Any changes made to the original property can lead it to be classified as a replacement property and become in breach of the borrowing provision. Maintenance and repairs are allowed for a property but improvements and alterations are not.
Public liability insurance should be considered.
Please login to the TopDocs section which can be found on our website under Advisers and Accountants > Education and Training. In the TopDocs section under Training > Technical Articles you will find more documentation regarding SMSF Borrowing.
The rules and regulations associated with SMSFs are complex, so please seek advice and clarification from your Adviser.
Source: ato.gov.au and babworthresources.com
SMSF Loan Process for Investing in Property
The following outlines the process to invest in property through an SMSF:
Step 1: Setup your SMSF
If you don’t have an existing SMSF then the first step is to establish this through wealthtracsmsf.com.au click on the ‘Start or Transfer an SMSF’ button on the homepage to commence the process. Once the SMSF has been established Wealthtrac will send you a Welcome Pack with all your SMSF documents, bank account details and bare trust/trustee documents (refer to below).
Step 2: Rollover your superannuation benefit and contribute to the SMSF
Once the SMSF has been established you can rollover your existing superannuation funds and commence making contributions to your SMSF.
Step 3: Have your loan pre-approved
It is advisable that a loan pre-approval is received to ensure that you will not be liable for unnecessary application fees and bare trust fees in the event that the loan application is rejected. Your adviser and your bank will help arrange the pre-approval.
Step 4: Setup a bare trust and trustee company
For an SMSF to borrow to buy property it must establish a bare trust that owns the property. The bare trust trustee must be a company and the property is purchased in the name of this trustee company. The directors and shareholders of the trustee company must be the trustees of your SMSF (if you have individual trustees) or the directors of the SMSF trustee company (if you have a corporate trustee for your SMSF). The bare trust trustee company cannot also act as the trustee of your SMSF. Wealthtrac can arrange the establishment of the bare trust and trustee company. (Please refer to our fees section for fees relating to the establishment of the bare trust and trustee).
Step 5: Sign bare trust establishment documents
Documents to establish the bare trust will be forwarded to you for signing. This documentation should be signed and retained until the property purchase has been settled. The signed documentation should then be returned with the Purchase Contract to Wealthtrac.
Step 6: Purchase the property
Once the bare trust documentation has been signed you can purchase the property. When signing the Purchase Contract please ensure the following occurs:
- The property must be purchased in the name of the bare trust trustee company
- All directors of the bare trust trustee company must sign the Purchase Contract
- It is recommended that the Purchase Contract be signed ‘subject to finance’
- You must not put the name of your SMSF or the name of the SMSF trustees on the Purchase Contract
Step 7: Return the bare trust and property Purchase Contract documentation to Wealthtrac
Once the Purchase Contract has been signed a certified copy of the signed Purchase Contract together with the bare trust documentation signed at Step 5 should be returned to Wealthtrac at Locked Bag 8850, Wollongong DC NSW 2500.
Step 8: Stamping of the bare trust
On receipt of the documentation, you will need to arrange the stamping of the bare trust with the State Revenue Office if required. Wealthtrac will advise you on the process to do this at the relevant time.
Step 9: Final loan approval granted by lender
Once final loan approval has been granted, the lender will forward the Loan Offer Document to you for signing.
Step 10: Loan Offer Documents to be signed and returned
The Loan Offer Documents will need to be signed and returned to the lender.
Step 11: Property settlement
At settlement the mortgage funds will be transferred by the lender and if applicable cash may be also paid from the SMSF. The vendor at that time will provide a copy of the signed transfer of the property to you, the trustee of the bare trust, this process will be managed by your solicitor or conveyancer.
Step 14: Property transfer and mortgage registration
The property transfer to the bare trust trustee and the mortgage are registered. This will also be arranged by your solicitor or conveyancer.
Step 15: Property rent and expenses
After settlement the property can be rented. The rent must be deposited into the SMSF bank account. All property expenses including loan repayments will be made from the SMSF bank account.