Can a house be sold without money changing hands (odd family situation)

Discussion in 'Legal Issues' started by emza, 24th May, 2017.

Join Australia's most dynamic and respected property investment community
  1. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Hi PC, bit of an odd family situation, need some info if anyone has it.

    Partner's father has sold his house to the youngest daughter for $290K (according to online search). Title search NSW shows now owned by daughter.

    Can this have occurred without any money changing hands from daughter to father?

    What I'm specifically trying to find out is if the property were "gifted", would it still show up as "sold for $290K" online?

    I'm assuming if it says sold for $290K then an actual private sale took place.

    Additionally, could it show "sold for $290K" online but have privately sold for, say, $20K or some low figure?

    Basically it's a very messy family situation, older estranged parent who is very ill, possible elder abuse/taking advantage situation. The parent is close to the end and we suspect the youngest daughter has done something dodgy.

    We don't know though, just trying to get some basic facts. Any advice is welcome, any ideas of what else we could search, look up online etc.

    Possibly may end up a legal situation to do with the estate, parent's cognitive capacity... huge mess.

    thanks for any advice

    edit: Showing up as sold for $290K on realestate.com.au for example. I don't know where this figure comes from but I assume some registrar of sales... correct?
     
    Last edited: 24th May, 2017
  2. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    6,496
    Location:
    Brisbane
    I know that a house can be sold for any price but the transfer duty needs to be paid on the true value, which can be determined either by a paid valuation from a registered valuer, or from an appraisal from an agent with comparables that need to be within a strict guideline and time relative to the property and the "sale" date.

    Why not get some legal advice right now? RPI?
     
  3. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    The value online would be correct for the area. Is there any way to find sale records via searches that would confirm the house was actually sold for $290K?

    What is RPI?

    We will likely end up getting legal advice but we want to make sure we have more information first.

    We're trying to work out whether it is possible for him to have "gifted" the property to her, she has paid transfer duty only and now owns the house, etc. In that scenario, would realestate.com.au still show $290K sale price?
     
  4. Terry_w

    Terry_w Mortgage broker licenced 4 tax/legal advice Business Member

    Joined:
    18th Jun, 2015
    Posts:
    20,276
    Location:
    Remote
    Yes it could.

    Money doesn’t have to change hands and this could be transacted in a few ways.

    It could be listed as a gift on the transfer, ie for no consideration.

    It could have been transferred for $290,000 yet no money changed hands.

    It could have been transferred for $290,000 with a vendor finance type loan which is later forgiven.



    Naturally there are many legal and tax issues with each of these.

    Under NSW law an under-market value transfer could be voided if made 3 years before death. It could be voided for a longer period too depending on the situation.
     
    Foxdan, Bonz, big max and 1 other person like this.
  5. Terry_w

    Terry_w Mortgage broker licenced 4 tax/legal advice Business Member

    Joined:
    18th Jun, 2015
    Posts:
    20,276
    Location:
    Remote
    It might.

    Do a search for the certificate of title then get a copy of the transfer.
     
  6. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    I have the title search document already showing the ownership. Is the transfer a different document?
     
  7. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    13,711
    Location:
    Sydney or NSW or Australia
    If it shows that it sold for $290k, that would be the transfer amount advised to the LTO. Stamp duty would also need to be paid at market value.

    Was the sale below market?

    Has the daughter taken a 'discount' and been taken out of the parent's will?
     
  8. Terry_w

    Terry_w Mortgage broker licenced 4 tax/legal advice Business Member

    Joined:
    18th Jun, 2015
    Posts:
    20,276
    Location:
    Remote
    Yes.

    It should be listed on the title document with a number. Do a search and get that document. It will show the form that was signed by the transferor and transferee.
     
  9. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Just from an eyeball search, it was probably at about market for the area (regional NSW).

    On final question - from the outside it looks like a move to take entire estate, etc and deprive other children. Elderly parent undergoing chemo/etc, possibly influenced by younger daughter. Huge mess.
     
  10. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    I have something that says "First schedule, [daughter name] and then a long number like T AMXXXXXXX" - where would I do a search for the transfer document. I obtained the title search from Infotrack.

    thanks for all your help
     
  11. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    13,711
    Location:
    Sydney or NSW or Australia
    Legal advice may be required to seek guardianship if you are able to act to protect the parent.
     
  12. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    6,496
    Location:
    Brisbane
    RPI is a member here and is a lawyer in Brisbane.
     
  13. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Yeah, it's super messy. Parent has had significant mental health issues, now physical health issues.
     
  14. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Found transfer document. Listed as transferred for $290K. Stamp duty paid, etc.

    >It could have been transferred for $290,000 yet no money changed hands. --- I'm guessing there is zero ways for us to ascertain this without heading off for some legal advice.

    Boy what a mess.
     
  15. Terry_w

    Terry_w Mortgage broker licenced 4 tax/legal advice Business Member

    Joined:
    18th Jun, 2015
    Posts:
    20,276
    Location:
    Remote
    was it transferred under a power of attorney?
     
  16. willair

    willair Well-Known Member Premium Member

    Joined:
    19th Jun, 2015
    Posts:
    3,713
    Location:
    ..Brisbane..
    Maybe find out if the person who's name is on the new title deed ,,also ask the question who has the legal document power of attorney to conduct their legal affairs and going by this the daughter may already be in control..
    First cab off the rank would be a Solicitor ,before you start walking into the court with a person next too you in a "silk-wig" at 5-10 per day..imho..
     
  17. Terry_w

    Terry_w Mortgage broker licenced 4 tax/legal advice Business Member

    Joined:
    18th Jun, 2015
    Posts:
    20,276
    Location:
    Remote
    willair - you can say that again, but I wish you wouldnt'!

    The transfer document will show if the transfer was signed under a POA.
     
  18. willair

    willair Well-Known Member Premium Member

    Joined:
    19th Jun, 2015
    Posts:
    3,713
    Location:
    ..Brisbane..
    Sorry about that Terry don't know why the post came up several times..
     
  19. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Not transferred under poa.

    Had a chat with a lawyer, looks like we might have to pursue poa and possibly getting it handled by state trustee to look after him/his finances/end of life care.

    Going to be incredibly difficult to get a medical assessment of him. Appears he'll die then fight is on to have property put back into estate so it can be divided up.
     
  20. JacM

    JacM VIC Buyer's Agent - Melbourne, Geelong, Ballarat Business Member

    Joined:
    12th Jul, 2015
    Posts:
    1,873
    Location:
    Melbourne, Australia
    @wylie RPI didn't show up as a link thus the confusion. If you put an "@" symbol in front of it when typing it in it becomes a link ;)

    @RPI ?
     
    Last edited: 24th May, 2017
    wylie likes this.
  21. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    And now we've confirmed the house was gifted - so $290K shown on transfer doc but no money changed hands. The house is now no longer part of the father's estate... he's in end-stage terminal cancer, we have no idea of his cognitive state and youngest daughter appears to be in defacto control of what is happening... no official power of attorney etc.

    Likely he'll pass away within months... anyone have any ideas how to progress here? At the very least he has given away an asset that could be sold to pay for his end of life care. Also it may stop him receiving Centrelink benefits and has triggered stamp duty.

    Yeah, so crap crap crap, it's looking very much like some financial advantage by the daughter has clearly been obtained and we honestly have no idea whether the transfer was legit or not.
     
  22. Terry_w

    Terry_w Mortgage broker licenced 4 tax/legal advice Business Member

    Joined:
    18th Jun, 2015
    Posts:
    20,276
    Location:
    Remote
    How did you confirm it was gifted?

    If there is a figure on the transfer and it wasn't paid it would be a debt still owning probably.

    QLD doesn't have a notional estate law as far as I know, but NSW does. This means even if the asset is not in his estate it could still be deemed to be. You might be able to sue in NSW jurisdiction after death if there is a connection to NSW.
     
  23. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Spoke to the person it was gifted to, managed to confirm it was gifted.

    Law advice we received mentioned notional estate and that we might have to pursue after death.

    From the past knowledge of the daughter involved in this and how this has suddenly all happened it is very clear to us that it's not above board, daughter is clearly hoping to somewhat "get away" with $290K property and rest of assets.

    Looks like we're going to have to apply for guardianship and financial control as well (which we'd give to trustees to handle).
     
  24. emza

    emza Well-Known Member

    Joined:
    9th Feb, 2016
    Posts:
    349
    Location:
    QLD
    Oh, sorry, didn't address this part - why might their be a debt still owing? Understanding I have is that a property can be gifted, stamp duty is still owed and sometimes may trigger CGT or whatever. From what we know, it appears the stamp duty was paid, the property was transferred, no debt owing (house was owned outright by father).