Transfer between spouses

[PeterKirsop]

Mr Polus

your release note reads in part as set out below My client is transferring his house in NSW to himself and his wife. (ie to use the release wordings A  as sole to A,B as joint tenants can this be done on pexa yet

Below are some common Part Tenancy Transfer scenarios:

• A (1/3), B (1/3), C (1/3) as Tenants in Common to B (1/3), C (2/3) as Tenants in Common—SA or NSW
• A (1/3), B (1/3), C (1/3) as Tenants in Common to B (3/6), C (3/6) as Tenants in Common—SA or NSW
• A, B (as Joint Tenants) to A (as Sole)—SA only
• A (as Sole) to A, B (as Joint Tenants)—SA only

[#2]

Below are some common Part Tenancy Transfer scenarios:

• A (1/3), B (1/3), C (1/3) as Tenants in Common to B (1/3), C (2/3) as Tenants in Common—SA or NSW
• A (1/3), B (1/3), C (1/3) as Tenants in Common to B (3/6), C (3/6) as Tenants in Common—SA or NSW
• A, B (as Joint Tenants) to A (as Sole)—SA only
• A (as Sole) to A, B (as Joint Tenants)—SA only

[NicoleAghabi]

Hi George,

Unfortunately, the release notes say it cannot accomodate for joint tenancies.

Further, there seems to be great inconsistency between PEXA and LRS.

I’m talking about adding spouse to title (duty exempt) as joint tenants.

The Registrar Generals Guidelines provide that on the transfer form, the transferor is spouse 1 and then transferee is both spouse 1 and 2. As to share being transferred, this is to remain blank and the same for consideration, this is to left blank.

I am told that PEXA requires the transfer of a half share with transferor as spouse 1 and transferee as spouse 2 only. This is not consistent with the General Registrar guidelines.

Additionally, the method of transfer: there is no monetary consideration and this is to be left blank on the transfer as per the RG guidelines. But on PEXA, we are required to select one of the options, none of which will do.

So are we supposed to put consideration of $1? If so. This takes us now to a financial settlement.

i have had to revert to paper.

Still a lot of kinks to iron out, and if I’ve been misinformed, please advise.

Waiting for the latest update. 

[NicoleAghabi]

Dear @GeorgePolus,

Is there any update to this issue?

I have reverted to paper, but now LRS need me to provide an exception. That is something in writing from PEXA to say this still cannot be done.

Could you please guide me to where I can get something in writing please? My clients have been waiting a while for their transfer to go through and all I'm getting from LRS, agents, OSR and PEXA is the ring a round.

Need urgent help in this regard please (need something in writing to accompany my LRS exception application).

Thanks

[TSullivan]

Hi @NicoleAghabi 

Sorry to hear that you are having a difficult time working out this Transfer. 

I'd be happy to walk you through this if you have time this week. 

My understanding is that these type of Transfers have been completed in PEXA for a few months now. 

That is assuming that we are talking about adding a husband or wife to the title (e.g. A to A & B as Joint Tenants).

In this scenario, B would be the only 'liable' party for stamp duty (even if exempt)? 

In regards to the "consideration", I'm not entirely sure the value to provide. It is a Land registry requirement that PEXA provides 1 consideration type. 

I will need to ask the NSW PEXA direct specialists which consideration type NSW members are using to complete this scenario. 

Please let me know if you would like me to help through direct message. 

Regards, 

Travis Sullivan - PEXA 

[GeorgePolus]

Hi Nicole

Apologies for the late response.   I returned to work only yesterday and am catching up on messages.

You are not alone in your confusion on this topic.  The confusion has resulted from evolving rules and the need, in the digital world, to bring the Land Registry and OSR into alignment.   In the digital world, these two entities must work from the same (PEXA) data.  I know it sounds odd, and NSW is not alone in this regard, but Land Registries and Revenue offices look at the same data in different ways.    The Land Registry is concerned only with the resultant proprietorship on title, while the OSR is concerned only with any incremental (dutialble) share that a Party is receiving.  It has taken some time to work through how the same data captured via electronic conveyancing may be consumed and used by these two disparate organisations each with differing requirements. 

I will seek to explain below.   Please come back to me if you have more questions. 

 From Monday Feb 8, it will be allowable in NSW to sever a Joint tenancy, provided all parties in the Joint tenancy group are represented.   Up until Feb 8, severance of Joint tenancy groups in NSW is not permitted,

Hence from Feb 8, if  you have, for example, A and B as Joint Tenants transferring to A, 

(A+B) --> A  

then, this will be permitted in PEXA provided both A and B are represented. (A and B may be represented by the same or different transaction Participants (subscribers)).

From Feb 8, PEXA will allow, in the example above, Party A, as PoT, to be carried forward as IP.   Doing so will enable NSW OSR will recognise that because Party A relinquishing is the same Party as A receiving, that the dutiable portion for Party A will be 1/2 and not 1.  Further, the representative of Party A will be billed only once for Party A as PoT and not once for Party A as PoT and again for Party A as IP.   

Please do let me know if you have more questions. 

Rgds

George

[NicoleAghabi]

Hi George,

I think this is quite significant for family lawyers as I am sure this scenario would happen a lot.

However, my query is for the exact opposite. Adding a spouse to title.

But nevertheless, I have your colleagues coming along to give us a presentation on how it now works.

[CarmelG]

Hi George

We have a husband who is the sole proprietor of a property in NSW . He would like to add his wife to the Title = A to A&B as joint tenants.

Can this be done on PEXA? 

When preparing the Transfer document in PEXA the five options for consideration type do not seem to apply. 

Thank you.

Carmel 

[LorraineBoyceSolicitors]

Abagail, good morning.  I have the same question on how to add a spouse to title.  Did you receive a reply on how to add a spouse to a title?  This is a continuing question and proper information is required for all subscribers.

[GeorgePolus]

Hi Lorraine

Yes it is possible to compete a spousal transfer in NSW  A --> (A+B)

To do so, Party A need only be represented as PoT and Party B as IP. 

Party A is 'carried forward' in the TFR as a receiving party.   In this way, Revenue NSW can 'see' that Party A relinquishing and Party A receiving are the 'same' Party.  

In NSW, the Land Registry allows only the following entries in Consideration Type:

With Monetary Consideration
Without Monetary Consideration And As Regards A Deed Of Partition
Without Monetary Consideration And As Regards A Deed Of Assignment
Without Monetary Consideration And As Regards A Court Order
Without Monetary Consideration And As Regards An Intergenerational Assignment
Without Monetary Consideration And A Change In Manner Of Holding

You will need to select the Consideration Type that best suits the circumstances of your clients transaction. 

Regards,

George