Property Transfer Lawyers in Melbourne

Changing the names on a title, done properly, with the duty and tax position checked first.

Not every property matter involves a sale. Sometimes you simply need to change who is recorded on the title: adding a partner, sorting out a title after a death, moving a property into a family trust, or unwinding an arrangement that no longer suits.

From the outside these look like paperwork, and the paperwork really is the easy part. The harder question is what happens to duty, land tax and capital gains tax when the transfer goes through, and whether the transfer you have in mind is the one that will actually achieve what you want.

Hendersons Legal has acted on property transfers across Victoria since 2001. We work out the duty position before anything is signed, prepare and lodge the transfer, and deal with your lender and with Land Use Victoria so the title comes back correct.

Transfers We Handle

We act on transfers of residential, commercial, rural and vacant land throughout Victoria, including:

• Adding a spouse or domestic partner to a title, or removing one
• Transfers between parents, children and other family members
• Transfers after a death, including survivorship and transmission applications
• Transfers into or out of a family trust, a company or a self-managed super fund
• Transfers following a separation or family law settlement
• Transfers between joint owners and business partners, including transfers of a share in a property
• Changing how a property is held, from joint tenants to tenants in common or the reverse
• Related party transfers where market value needs to be established

Transfers Between Spouses and Domestic Partners

This is the transfer people most often assume is free of duty, and the assumption is frequently wrong.

Victoria does offer a duty exemption for transfers between spouses and domestic partners, but it is narrower than most people expect. The property has to be residential, the transfer has to be for no consideration, and at least one of you must live in the property as your principal place of residence. That occupation has to begin within 12 months of the transfer and continue for at least 12 months. There are also limits on who else can take an interest, and the parties must be individuals rather than companies or trustees.

The practical consequence is that transferring an investment property, a holiday house or a commercial premises to your partner will generally attract duty on the market value of the share being transferred, even though no money changes hands between you. So can a transfer where the mortgage arrangements are restructured in the wrong way.

There is a separate exemption for transfers that follow the breakdown of a marriage or domestic relationship, which works on different conditions again.

We assess which exemption applies to your circumstances before you commit, and if none does, we tell you what the transfer will cost so you can decide whether to proceed.

Transfers After a Death

When a property owner dies, what needs to happen to the title depends on how the property was held.

Survivorship applications

If the property was owned as joint tenants, the surviving owner becomes the sole owner automatically as a matter of law. The title still needs to be brought up to date, and we lodge a survivorship application with Land Use Victoria to remove the deceased person’s name. No duty is payable on a survivorship application. It is a straightforward matter, and one you can usually deal with when you are ready rather than urgently.

Transmission applications

If the property was held as tenants in common, or in the deceased person’s sole name, the share does not pass automatically. It forms part of the estate. A transmission application registers the executor or administrator on the title so the property can then be sold or transferred to the beneficiaries under the will.

A transmission application usually follows a grant of probate or letters of administration, and we can act on both. Our wills and estates lawyers handle the grant and the property side together, which avoids the delay of two firms passing files back and forth.

We know these matters arrive at a difficult time. We keep the correspondence plain, tell you what we need and when, and do not chase you for things we can obtain ourselves.

Transfers Involving Trusts, Companies and Super Funds

Moving a property into a family trust, out of a company, or into a self-managed super fund is where the tax consequences tend to bite hardest and where advice earns its keep.

Duty is generally assessed on the market value of the property rather than on what the parties agree between themselves, so a transfer at a nominal price does not avoid it. Some transfers to and from trustees are exempt or concessional in specific circumstances, and many are not. Capital gains tax can also be triggered by a transfer that involves no money at all, because the tax law substitutes market value where parties are not dealing at arm’s length.

We work through the duty position with you and coordinate with your accountant on the tax side before the transfer is prepared, so the structure you end up with is the one you intended.

Separation and Divorce

Where a property is being transferred under a family law settlement, a duty exemption may be available if the transfer is made under an order of the court, a binding financial agreement or another instrument the Duties Act recognises. The form the settlement takes matters, and getting it wrong can turn an exempt transfer into a dutiable one.

We prepare and lodge the transfer, deal with the lender on the refinance, and work alongside your family lawyer.

Duty, Land Tax and Other Costs

Most people are surprised by how much sits behind a transfer that involves no purchase price. Before we prepare anything, we check:

• Whether land transfer duty applies, and if so, on what value
• Whether any exemption or concession is available to you
• Whether foreign purchaser additional duty is triggered by any party to the transfer
• What the transfer does to your land tax position, including the absentee owner surcharge and the vacant residential land tax where they are relevant
• Whether capital gains tax will be assessed on the transferor, and whether the main residence exemption applies
• Whether your lender must consent, and what they will require

You get this in writing before you sign, not after.

Why Use a Lawyer for a Property Transfer

A transfer is one of the few conveyancing matters where the legal question comes first and the paperwork comes second. The document itself is short. Whether you should sign it, and in what form, is a question about duty, tax, estate planning and sometimes family law.

Because we are qualified property lawyers, we can advise on the transfer and on the consequences of it. If a title turns out to have a caveat, an old easement, a missing subdivision or a mortgage the parties had forgotten about, we deal with that as part of the same matter rather than referring you elsewhere.

We are based in Melbourne’s CBD and act across Victoria. Signing is electronic and settlement runs through PEXA, so you do not need to come to us.

Frequently Asked Questions

How It Works

Getting started is simple. Call us or complete our online enquiry form with a few details about the property and what you are trying to achieve. We will confirm the scope of the work, give you a clear fee estimate and an assessment of the duty position, then get underway.