Four forms of legal ownership: Which name should you put on your property's title?

When you’re buying residential property, you’re understandably focused on what to buy, where to buy it, and how much you’ll have to spend.

In the effort to get the ‘what’, ‘where’ and ‘how’ right, it’s easy to overlook the ‘who’—that is, the name that will appear on the title as the property’s legally recognised owner.  

There are four forms of ownership: personal name, company, trust and self-managed super fund (SMSF). Each one has different implications for your property’s security and tax effectiveness. It’s important to determine the appropriate form of ownership before you buy, because by changing it afterwards, you could be up for thousands in additional stamp duty and/or capital gains tax (CGT).  

Each form of ownership suits different personal circumstances, and has a range of pros and cons. Let’s look at each in turn.  

Personal name

Under this form of ownership, you as an individual, or with other individuals, appear on the title to the property. Generally speaking, personal name ownership is suitable for the vast majority of residential property owners. This includes people who are buying a home to live in, because personal name ownership enables them to claim a full CGT exemption. It also includes people on high salaried incomes who are buying an investment property and want to use negative gearing benefits to reduce their tax bill.  

On the flipside, owning a residential investment property in your personal name means that when the property becomes positively geared or is sold, you must pay tax in your name at your marginal rate.  

Company

A company is a separate legal entity. It can own assets, must pay tax on them, and lodge tax returns. However, company ownership is not appropriate for owner occupiers, because companies aren’t eligible for a full CGT exemption. Nor is it suitable for residential property investors, because companies can’t get the 50% CGT discount applicable to property held for more than 12 months.  

In some cases, company ownership may be suitable for commercial properties; for example, for businesses who want to own their premises. This is a complex area, so it’s important to seek advice.  

Trust

Unlike an individual or company, a trust is not a separate legal entity. It’s a vehicle to hold assets on behalf of nominated beneficiaries (that is, the individuals or companies whom you wish to receive income or capital gains from the trust’s assets).  

It’s difficult for creditors to get hold of assets in a trust because they are not owned by the beneficiaries. Trusts also enable you to minimise the tax liability from rental income and capital gains by distributing them amongst a multiple beneficiaries with the lowest marginal tax rate.

On the downside, trusts can only distribute profits, not losses. This makes them unsuitable for most residential property investors, who rely on negative gearing benefits to hold their assets.  

SMSF

Most Australians have their super in a fund managed by a third party. However, a growing number are running their own funds.The main reason to buy residential property in an SMSF is because of the concessional tax rate: 15% on monies held in the fund and zero when they are withdrawn upon retirement.  

SMSFs aren’t appropriate for owner occupied property or holiday homes, because assets in the fund cannot be used for personal use, even if it’s only for a week or two each year. And they are better suited to people who already have a sizeable amount of money in an SMSF, because lenders generally require a higher percentage deposit from borrowers. There may also be higher loan setup costs and higher interest rates. What’s more, complying with SMSF regulations can be complex and costly, so it’s not for the faint hearted.  

The form of ownership has a significant impact on the security and tax effectiveness of your residential property portfolio. What’s more, this impact can change in accordance with your circumstances, so it’s vital to seek advice from your tax adviser or solicitor.  

MARK ARMSTRONG is a director of ratemyagent.com.au, Australia’s number one real estate agent rating website.

This article was originally published on Property Observer in November 2013.