Ask Margaret

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Hi,
I'm thinking about purchasing a property that has been built in underneath with no council approval. The problem is that it is a high set home on recently flood zoned area of <a href="https://www.urban.com.au/property-observer" target="_blank">Logan</a>. My question is, is it still possible to get building certification for lower levels in flood areas or does the council never allow it?
Margaret Lomas' answer is on the next page. Please click below to continue.
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When you own a house or unit in any local government area, it is your duty to ensure that the building codes provided by the state department of planning, and administered locally by the council's own planning departments, are adhered to. 
This also means that, if you make any changes to a property which has previously been approved as compliant, you must first ask council for permission to make such changes.
These rules exist for many reasons - to ensure that an area remains aesthetically pleasing, to provide safe living environments for residents, and to protect the environment itself. If you have ever visited a country where there is no building code, and seen how the residential areas look when people build whatever they like, you will better appreciate these rules! 
You will also know that when a natural disaster strikes, the loss and injury caused is far more catastrophic, often due to the unsafe nature of what has been built and the overbuilding of those areas.
And so to your dilemma. You are thinking of buying  property with an unapproved alteration, and you should know that the council is within their rights to ask you to revert it back if they so desire. If the council feels for any reason that the alteration contravenes the current development rules, or in any way poses a risk to the surrounding community in the event of a flood, then they will ask you to revert it. 
You should check the flood maps available on the Logan City Council website, and see if this property falls within a flood zone. If so, your chances of having this alteration retrospectively approved is next to none, and the chances of being asked to remove the alteration is in play.
You should ask the current owner to either have the alteration approved prior to your purchase, or provide a letter from the council attesting to the fact that the alterations do not contravene any planning rules, and would be otherwise approved if you submit a development application. Then, as soon as you settle, take the steps to have the alterations approved to remove any future doubt.
 
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mlomas-KC9MUPZ6Ca

Ask Margaret: What happens if I buy a house with an unapproved alteration?

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Dear Margaret,
My husband and I would like to build granny flat through an SMSF at our own home – is this possible to do?
Lyn
 
Dear Lyn,
This one is a tricky one. I consulted Property Success team member Ian Rodrigues to get his thoughts and talk it through.
I’m not sure what it is that you are hoping to see as an outcome for doing this. Presumably, you are thinking that you can either get rental income from the granny flat into the super and it will be an inexpensive project since you won’t need to pay for the land, or that you can ‘rent’ some of your land to the super fund for the purposes of building the flat.
The issue is, once a building is built on a piece of land, that building becomes the property of the owner of the land.  And so the super rules would prohibit this, as the asset would no longer be owned by that super fund.
In talking this through with Ian, we considered what may happen if the granny flat was one of the mobile varieties, such as those often erected in holiday or mobile home parks. In this case, the super fund would be buying the flat as ‘plant’ and you would be allowing that piece of plant to be housed on your land. Technically speaking, if this piece of plant was fully mobile and could be shifted from place to place, it may be allowed, as the super fund can retain the ownership of this piece of plant, and receive any rent it attracted.   
Keep in mind that this granny flat would not be able to be rented out to any parties related in any way to the super fund, so if you’re thinking it could be a good way to get a place for the kids or a relative, then you won’t be allowed to do this. You may be able to personally receive rent on the land you provide to park the mobile home on. I say this because if you were, say, a plumber by trade, and your super fund rental property needed a plumber, you can carry out the work and be paid for that work.  I can’t see a lot of difference between that and receiving rent for land you provide.
The best way to check if any of this is allowable is to have a lawyer experienced in super fund law to check it out for you, or get a ruling from the tax office. As with all questions of this nature, pass it by your accountant to see what they think.
Regards,
Margaret
Have a property question?   <a href="mailto:admin@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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A granny flat with your SMSF? Ask Margaret Lomas

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Hi Margaret,
I converted my main residence to a rental property and bought a house to live and then sold the old/rented property. The property was my principal home, built in 2009 and I occupied it from 2009 to 2015. I then rented and sold it with settlement in 2017 February. 
When calculating capital gains tax (CGT) for my old property, can I add unclaimed interest and rates  to the market valuation I got from when it first started producing income? 
For rental schedule can I include interest up to settlement date, even though the rental contract ended?
Thanks,
Todd
 
Hi Todd, 
When a former family home is subsequently rented out, there are specific rules around the subsequent capital gains tax treatment which will now apply to you.
If you do not wish to claim your principal place of residence on any other property, you can employ the absence rule which allows you to rent that property out for up to six years and, if you either sell it or move back into it within that time, you still don’t accrue a capital gains tax responsibility.
In your case, you may decide to shift that exemption to the new home you bought from the date you moved in, in which case there will be a small CGT liability for you.  Assuming you have a valuation from the date you moved out, you can reset the cost base to being that market valuation, and CGT will apply to any gain made since that time.  As your contract date is December 2016, it will qualify for the over 12 months hold period for the discount, and so the gain will be halved and then CGT applies according to your marginal rate of tax, on that amount.
You ask if you can add any unclaimed interest and rates which occurred while you lived in the property to the market valuation.  The answer to this question is no – as it was a principal place of residence, and these items have no benefits attached.  The market value is the cost base, and it is only any expense incurred after the property becomes income producing which become allowable deductions.
As for the interest, costs associated with owning a rental property can only be claimed as a yearly deduction when the property in question is ‘available’ for rent, and your property ceased being available when the rental contract ended.  However, you may be able to account for this interest in the calculations for assessing the amount of gain – essentially they may become an addition to that cost base.  It’s important that you chat to your accountant about this, as they are qualified to know all of these little nuances of property tax law, and can guide you to ensure that your tax return is prepared legally.
Kind regards,
Margaret
Have a property question? <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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Ask Margaret: How do I calculate capital gains on the former family home?

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Dear Margaret,
While Kingston in Logan, Queensland still offers good returns, I have dealt with a number of real estate agents in the area (I have four properties there) and I've noticed they tend to accept the first offer if it is close to the asking price even, if it is the first listing day and the market is hot. I think that potentially they could get more for the vendor by waiting a little longer for multiple offers to come in. 
Each property I own I have bought through a different real estate agent and they all do the same thing. Is my fear founded that this keeps a lid on property price growth in the area?
Cheers,
Helen
Dear Helen.
One of the things that all investors must know is that the process of listing, taking offers and then conveying property from one party to another is very different in every state.  For example, in Victoria, where there is a lot of interest in a property, a vendor may call for multiple written offers from buyers and then decide on one, but this is not necessarily the case in other states.
In QLD, a real estate agent appointed to sell property for a client must keep the client informed of any significant development or issue in relation to the property(and) must immediately communicate to the client each expression of interest, whether written or oral(unless) the client has directed otherwise in writing.
This means that, as soon as an offer comes in, agents are obliged by law to present this offer to the vendor, and the vendor then decides if they will take it.  And so, it is not the agent who is 'taking' the first offer - they are merely presenting all offers to the vendor, and it is the vendor accepting them.
As all agents also have an obligation to achieve the best sales price possible for their vendor, then if you know of agents who are indeed convincing the vendor to take the first offer on the table when there is clearly the potential for further interest (as indicated by a hot market) then they are not satisfying their obligations under the terms of their contract with the vendor.  Where you have evidence that this is indeed happening with a particular agent, I advise you to approach the Department of Fair Trading in that state, with the evidence, so that it can be acted upon.  
On another note, I am a little concerned that you already own four properties in that area and seem to be seeking a fifth.  It can be common for an investor, having successfully invested in an area, to want to repeat that positive experience.  But I caution you to realise that if you own too many properties in a single market, when that market cools, as it will, everything you own will stagnate. You will also face a looming land tax bill, as once your land values in any one state exceed a certain threshold, land tax becomes payable on all other properties acquired in that state, and this can be expensive.  Diversification is a critical component of all investing strategies, and I urge you to look around for areas in other states which have future growth drivers, so that you can add some geographical diversity and also minimise your exposure to land tax as well.
Kind regards,
Margaret
Have a property question?  <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
Please not that due to the number of requests, Margaret may not be able to answer every question.
Picture: Wikimedia Commons.
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Logan, Queensland investment overload is a concern: Ask Margaret

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Hi Margaret,
I have had an investment property for the past seven years that is negatively geared in the inner Melbourne Inner East. 
The house is very old and has had numerous problems due to its age. We are looking at demolishing this house and rebuilding a new home.
 On completion of construction, our intent is to either rent it out or making this our principle place of residence (PPOR) if we can't rent it out. 
Could you please advise, if we decide to sell it in a few years' time (after we have used it as a PPOR), would we be liable for capital gains tax (CGT) or is there a sunset clause after which CGT does not apply? 
Regards,
David
Hi David
It would seem that CGT, when it applies and whether there are time limits or statutes on it, is one of the most misunderstood areas of our tax law that there is.
In your case, the property you refer to has been your investment property since around 2008, and therefore it is well within the era that CGT is charged on any property which is not your PPOR.
Being rented out is not a criteria which must apply. Whether it is rented or not, if it isn't your own home, CGT applies (unless it started out as being your own home and then you moved out). 
Under these circumstances you may qualify for the six year rule exemption, which allows you to move out for a period of up to six years and not incur any CGT if you subsequently move back in or sell.  This of course depends upon you not claiming this exemption on any other property - you can only have one exempted property at a time.
If you were to move in to this property, and had only this property on which your principal place of residence exemption was placed, it would not matter how long you stayed in it, there would still be some assessable gain for the period of time it was not your PPOR.  This is because it was an investment when you bought it and no amount of living in it can wipe this fact away.
If you go down this pathway you must keep accurate records of your purchase price and everything you spend on the property, so that pro-rated capital gains tax can be established when the time come for you to finally sell the property.
Regards,
Maragret
Have a property question? <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
Please not that due to the number of requests, Margaret may not be able to answer every question.
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Ask Margaret: Will CGT still apply if I move into my investment property?

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Hi Margaret,
I have just purchased a house as a principle place of residence for $295,000 with $235,000 left in the mortgage and $225,000 in an offset account. 
We are using the money in the offset account (approximately $30,000) for renovations, and are looking to spend the rest on the purchase in (hopefully two) investment properties.   Do you think this is a good plan of attack or should I keep the money in the offset account and use the equity in the principle place of residence as a deposit on an investment property? 
With $30,000 on renovations hopefully I can have the house re-evaluated for $350,000. 
Kind regards,
Dave
Hi Dave, 
When investors come to my company Destiny for assistance, around 80% of them have finance structures in place that are not well thought through and which are potentially costing them some good tax deductions.
Around 20% of them are straight out incorrect, some of them using strategies which may contravene the spirit of the tax act or in other ways be a potential issue going forward.
When you buy any kind of property, be it for investment or as a principle place of residence (PPOR), you should be thinking with an holistic view – and considering what you may be wishing to achieve financially over many years, rather than just what you need at that moment in time. 
You should have a forward plan and know what level of financial independence you wish to achieve and over what time, as well as many other things such as your risk profile and current and future cash flow needs.
Then you must consult with a professional who can also assist you from a property investment advice perspective as well as getting you the loans you need – and to do this they must have some kind of qualification such as the Qualified Property Investment Advising qualification offered through <a href="https://www.pipa.asn.au">www.pipa.asn.au</a>.
Before you use the $195,000 which will remain in offset after your renovations to invest, you should first clear away all and any personal debt.  This is because such debt is non- deductible, and to use cash as a deposit for a deductible investment while you still have non- deductible debt can be a mistake. 
Then you need to be very sure that you plan to remain in your current PPOR for the duration – if you think there may be any chance that the future may bring a  desire to upgrade into a larger and more expensive home of your own, you will want to preserve your cash to use for that time. 
If you use up your available cash on an investment or two, while you can draw this back to use to buy a bigger home of your own, doing so would create a non- deductible, or personal debt which carries no deductibility.
If this all sounds confusing, this is because it is!  And so you need good guidance which considers a holistic approach to your entire financial future, not just this current home, or the immediate few properties you are ready to buy.  
Regards,
Maragret
Have a property question?  <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
Please not that due to the number of requests, Margaret may not be able to answer every question.
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Ask Margaret: Should I invest or keep in offset account?

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Dear Margaret,
I was considering buying a two bedroom, two bathroom apartment off the plan in Newstand, Brisbane for about $650,000.  
However, there are mixed opinions about supply and demand there. Some says it is already oversupply, while others say say there is a shortage.
Do you think this is a worthwhile investment?
Regards, 
Ming
Hi Ming,
It would seem that at the moment most property investors want someone to simply tell them if they should buy a property they have seen, or not, or even just tell them where and what to buy. In asking such a question, it assumes that all investment properties are right for all investors, and nothing could be further from the truth.
Property investing is actually a very personalised thing, and what is right for one investor, may not be right for another.  While some properties simply should not be purchased at all, and some areas will never deliver anything in terms of growth, when it comes to buying property in what is thought to be an area which may have potential, there are a number of things to consider:
<ul>
<li>Risk</li>
</ul>
All property types will carry different levels of risk to each other and each investor should consider whether their own risk profile matches the level of risk each property type presents to them. 
For example, a serviced apartment in a tourist destination would be considered to carry a lot more risk than a three bed house in the Brisbane suburbs. Further, that serviced apartment would present a lower risk to a person with a large portfolio of properties, and plenty of personal cash flow than it would to the one who has a tight personal budget, and a complete reliance on that property delivering weekly income, and growing. 
The investor with the large portfolio can afford for it not to work out, while the other investor might have their entire financial future changed by just this one property if it works out badly.
<ul>
<li>Cash Flow</li>
</ul>
Some properties deliver better cash flow than others, and some investors can withstand higher levels of negative cash flow than others can.
The cash flow of any property you buy must be one which you have established you can manage – and you must build in a margin for lower than expected cash flows to cover times when vacancies may be higher than anticipated.
<ul>
<li>Capital Growth</li>
</ul>
The investor with the large portfolio can afford it if one or two properties stagnate and do not grow, while the newer investor, particularly if they have low equity in their own home, must have a property with more assurance of growth.  While there are no guarantees of growth anywhere, it’s commonly known that some areas have characteristics which assure at least some growth over time (like suburbs of a capital city) while others may experience fabulous growth, or none at all (or even a loss, such as in some mining towns).
And so, in direct answer to your question, while Newstead definitely possesses characteristics which demonstrate that it has what it takes to grow and deliver a decent cash flow, there are concerns over the short term supply factor.
In the event that the developments keep being approved, the supply will grow faster than the demand, and, in the short-term at least, prices may stagnate.  Given the strong fundamentals of the area, this oversupply will eventually work its way out, but no one can tell you with any certainty when this will happen – and so you must determine the level of risk that this presents, to you.
Kind regards,
Margaret
Have a property question? <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
Please not that due to the number of requests, Margaret may not be able to answer every question.
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Ask Margaret: Will buying off the plan in Brisbane be a worthwhile investment?

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Hi Margaret,
I’m looking to buy my first investment property. I already have my own home which we have a fair bit of equity in. We will use that equity to finance the next deposit. 
Do we have to have access to that equity to put down as a deposit at contract signing? Or can we sign a contract with 100% of the purchase value subject to finance?
Regards,
Samuel
Hi Samuel,
First of all, congratulations on being ready to take this first step!  As it is likely you may be looking for an investment property anywhere in Australia, its important that you understand the differences which exist in every state in terms of how a property is transacted and the procedure for deposits.
First of all, the deposit required in every state, and when it is paid, is different. For example, in NSW, the deposit is either made in the form of a non-refundable 0.25% of the purchase price upon acceptance of the offer (to secure it and protect you from being gazumped), with the balance of 10% of the purchase price being required five days later (at which time the contract becomes unconditional), or as a straight 10% when you are ready make your contract unconditional (but in the meantime someone else can buy it).
In complete contrast, a QLD purchase attracts an initial deposit of whatever you can negotiate (I always suggest $1,000 and this is refundable)  with a ‘balance deposit’ (again I suggest a further $9,000) to be paid upon the contract becoming unconditional.  In between those two extremes falls the other states, and you must become familiar with each state’s individual process before you even begin to find your investment.
In any event, a deposit of some type is usually paid, and in your case, the entire amount of your deposit is tied up as equity in other property.  While you can use your own cash to make a deposit, this is not advised.  This is because if you use your own cash, you cannot subsequently ‘repay’ yourself from the loan you get to buy the property, as this payment to you is considered by the tax office to be a personal payment.  It then loses the ability for the interest incurred on this amount to be claimed as a deduction.  It’s important to preserve the nexus between a payment and the property, and the only way to do that is to ensure loan funds are spent directly on the property or its expenses.
You have two ways that you can get to this deposit and still maintain full deductibility without using your own cash:
<img src="/images/2014/07/04/yellow-one.jpg" alt="">You can approach the lender even before you find a property and set up a ‘line of credit’ loan using your current property equity.  This line of credit loan then sits undrawn, and the moment you find a property it is available for you to draw from to make the deposit.  As long as the funds from this debt are only ever used for, and connected to, an investment property, they are fully deductible.  There is a multitude of ways you can do this:
<ul>
<li>you can make it as large as your equity allows, use it for deposits every time you buy a new property, obtaining an 80% loan against any new property when you settle it (and so your 20% and costs comes from the line of credit to add to this 80% loan), 
</li>
<li>you can apply for only enough for the deposit, and then apply for a loan increase to be effected when the property settles and can be taken as security, or, 
</li>
<li>if you have enough equity in your own home, you can just put in place a loan big enough to buy the whole property – drawing the funds up as needed to pay deposits, costs and the final payment.</li>
</ul>
<img src="/images/2014/07/04/yellow-two.jpg" alt="">You can instead get a deposit bond.  This is an insurance policy of sorts, which guarantees to the vendor that, if you renege and do not proceed with the purchase, your forfeited deposit will be paid by them.  A deposit bond has a fee which is often less than the interest on the deposit would be if you were to use loan funds, but be warned – while the insurance company pays the forfeited deposit they still chase you to get it back!  This is only of concern if you withdraw from the purchase after your contract has become unconditional.
Whatever you decide, it’s important to get guidance from a qualified person who can be sure you structure this correctly, as getting it wrong can be a tax nightmare.  It’s also important that, before you even get started, you become educated – do a lot of reading and find a great property investment course to do first!
Have a property question?   <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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Ask Margaret: How can I use my house's equity to finance my first investment?

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Hi Margaret,
I just read your recent reply on <a href="/property-observer" target="_blank">moving out of your home and the capital gain tax that may come with it</a>.
Wonder if you could help me with this.
Just to clarify, if I stayed in my home for three years and if I sell it 10 years after moving out from it, and I have no other home, I would have to pay 4/13 of the net captital gain (method one)?
Can I get a valuation after the six years is up an calculate the gain from that date and pay tax on the difference (method two)?
I think the Australian Tax Office (ATO) website seems to deal with method one. Is method two also possible?  My six years is up in a years time and I am contemplating whether to sell since I live overseas.
Regards,
Shanthi
Hi Shanthi,
This part of the tax rules can be very confusing - and can be really hard to wrap your head around.  Where tax is concerned its really important that you contact an accountant, tell him or her your exact situation and tell him or her just how the rules apply to you, and what you will pay.
I have checked with Ian Rodrigues, my Property Success team member and tax specialist, and we talked your situation through.
You can choose to treat a property as your main residence even after you move out provided you do not choose another property as a main residence during that period and it is not rented.  This means that, if you didn’t own anything else, and you didn’t rent out this property, you can keep the main residence exemption on it indefinitely and pay no capital gains tax.
If it is rented out, however, the maximum period you can treat it as your main residence after you move out is six years.  You can move back in during the six years and the six year period will reset. If you continue to own the property after the six year period has expired,  you only get a partial exemption.
In your example, if you lived in it for three years, and then rented it for 10 years, you would have to pay capital gains tax on 4/13th of the gain.
You can't use a valuation after the six years for the basis of calculating the capital gain , but you are able to use a valuation at the date it ceased to be your main residence.  In your case, this was three years after you purchased it. The capital gain would  then be calculated as 4/10th of any gain over that market value.
You will need to get a qualified valuer to provide you that retrospective valuation if you don't have one from that time - the ATO is unlikely to accept a market opinion from a real estate agent where no valuing qualifications are held.
Again I stress that you should discuss this with an accountant who has a good grasp of capital gains tax and main residence exemptions.
Have a property question?   <a href="mailto:askmargaret@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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