Hi all,
I have a situation seeking advice please!IP to be settled is in my sole name.
Interest only Finance application has been completed in mine, AND wife’s name (banks mistake)time is of the essence and it’s not a simple strike name out of clause.
I am on top marginal tax, wife earns hugs and kisses.
Will the taxman still allow full rebate or will I only be able to claim 50% of interest because the loan only is in both names???
TIA
JWhich bank is it?
Most can re-issue documents in a day with corrections and it is a simple matter of going in to their office and signing them to save on postage days wasted.
There should be no serviceability restraints as the wife is not working.
Regardig the tax question, I am not certain of this regarding the loan side but the property expenses will be all yours.
Robert Bou-Hamdan
Mortgage AdviserThanks TMA,
You put it back into perspective by saying ‘property expenses will be all yours’ because – at least it is in my name.
Kudos to you!
JI am not sure also, but think you can only claim expenses at the same % of ownership. If she is not on title, she doesn’t own anything. The loan may be in two names, for whatever reason, but the deductions (and income) should go to you.
ps not an accountant!
Terryw
Discover Home Loans
Mortgage Broker
North Sydney
[email protected]Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Agree with Terry, ownership is what counts not whose name is on the loan.
Carlyle Cousins
Incentive Business Accountants
http://www.incentiveaccountants.com.auATO assumes two parties borrow 50/50. Your wife then lends you (50%) the money to invest in property. She charges you interest (@ bank rate) which is assessable income. She gets charged interest by the bank which is an allowable deduction. The assessable income = allowable deduction and therefore is doesn’t affect her situation. You are entitled to a deduction for the interest you paid your wife.
To look through this structure the ATO relies upon names on title (when applicants are related) & names on loan become irrelevant.
I am a Chartered Accountant but this is not advice (just info) so see your accountant.
Cheers
Stu
Again, thanks all – your offerings have taken the squeemish feeling away.
Now that I have sent the thing off, I will elaborate on the situation – if you’re interested!
I live interstate of the IP (I’m in QLD – IP in WA)
Financier branch – with whom I have a relationship is in country WA – lending centre is Perth. Going for a no cash down, IO equity lend.Inspections went well, Valuations were fast, conveyancing authority to act and prepare went fast.
I then queried the bank as I had only 10 days and I hadn’t signed any loan docs…
Snail mail is one day from country branch to Perth lending centre, then 5 days to QLD or 2 days best express to QLD – The branch manager had already, thoughtfully got lending centre to express send direct from their office. Loss of control ensued…. That was on the 30th April. Phoning Aus Post 131318 number, they stated that the express post wasn’t signed for Dangerous Goods – so it had to go via road, last time I checked Aust Post [this morning] they said that it had scanned in at Sydney – with still another 48 hours to go, before it will reach me.If the docs were here last week, I could have had the lend flipped over in my name only, as it was an err. I had to skive off at work today [blush2] – the branch was able to email docs, but I wasn’t simply able to delete my wife’s name, some docs had to be printed double sided etc etc, that a fax wouldn’t do.
All in all, I sent out my panic note this morning, unable to contact bank (WA 2 hours behind, Accountant – drinking latte at my expense)
It’s amazing who you turn to in times of stress! I was quietly confident TerryW and TMA would be willing and able to help.
Settlement is (HOPEFULLY) on Monday, docs have just been sent off with both signatories in a Platinum Express post. I am assured that the docs will be in Perth 12pm this Wednesday giving the lending centre/conveyancer (all in one) Thursday, Friday to do what they do…
Bubbly on Monday after this little excursion!
Thanks guys so much [thumbsup2] for clearing it all up.
Just to make you feel comfortable, even if it settles a few days late, it won’t be overly expensive as long as you don’t have any time is of the essence clauses or other wierd clauses in the contract.
Robert Bou-Hamdan
Mortgage AdviserThe.J
One question though. How did the bank make the mistake? Surely you must have put your wife’s name on the application form or they would not have know her details??
Terryw
Discover Home Loans
Mortgage Broker
North Sydney
[email protected]Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Hi Terryw,
For starters, I’m not bagging the financier – pretty much a clerical error, at a very bad time! I am fortunate enough to have direct service where I can pick up the phone and ask if I’m good for $x.
Completed boilerplate forms are sent to me to autograph, the ‘standing order’ has been a lend in my name in a separate account structure. This didn’t get done this time and threw me into a spin!
Thanks
J.
If the lender admits the error, there is no reason why they cannot change the loan documents after settlement to tidy things up.
Robert Bou-Hamdan
Mortgage AdviserI’ll follow up your advice Robert, for bookkeeping clarity sake;- I have taken Stuart’s information onboard (and managed to catch up with my latte accountant)
I must also say I am impressed with Australia Post Platinum Express post service – I posted the documents in Townsville yesterday afternoon @17:30 and I had a phone call from the Perth office at my lunchtime (AEST) today, to say the docs were received, being processed and that the inhouse conveyancing department have confirmed Monday’s booking for settlement.
$11 postage for a “book” of triplicate docs is a heck of a lot cheaper than exceeding settlement (over the additional 3 day grace) or courier or flying over personally [biggrin]
Cheers
JThe Mortgage Adviser
Veteran Forum Contributor [2692 posts]
Posted 09/05/2005, 19:26:22Just to make you feel comfortable, even if it settles a few days late, it won’t be overly expensive as long as you don’t have any time is of the essence clauses or other wierd clauses in the contract.
Stick to mortgage advice because your legal advice is wrong.Even if there is a “time is of the essence” clause it is not a big deal.they have to give reasonable notice that they are going to rely upon it.Have a read of “Legione and hateley”
gf
gf,
You are new to this forum and you are definately picking the wrong person to pick a fight with so I will give you the benefit of the doubt. I suggest you take a breath and relax before posting absolute crap directed at me that is without merit.
I do not give any legal advice or any other kind of advice for that matter. The information in this forum is just general discussion.
Regarding a ‘time is of the essence’ clause, there are various different wordings that can apply. Some such wordings do not require providing reasonable notice of anything. Also, reasonable notice would only apply if there is an ongoing relationship where an applicable ‘time is of the essence’ clause is contained in the contract but never enforced and one party decides to invoke the clause after these ongoing dealings outside the contract.
I am familiar with LEGIONE v. HATELEY (1983) 152 CLR 406
“The respondent lost her interest in the land because she did not pay the residue of the price at the time she had promised, though she had agreed that time was of the essence of her contract. There is no equitable jurisdiction to relieve against the consequences of failure to pay the residue of the purchase price by the due date when the parties have agreed that the time of payment is of the essence of their contract (cf. per Lord Wilberforce in Shiloh Spinners Ltd. v. Harding (1973) AC 691, at p 723 ). The purchaser, having lost her right to specific performance, has lost the benefit of the expenditure which she outlaid in putting a dwelling on the land. The appellants have obtained the benefit of that expenditure, but that circumstance does not destroy or sterilize the stipulation that time should be of the essence of the contract.”
Shoooooooooo
Robert Bou-Hamdan
Mortgage AdviserYou must read all of the findings not just one piece.And in that case the woman also had a case for unjust enrichment anyway.
However the moral is that nobody should ever sign contracts with essence clauses unless they are certain they wont get in a problem.gf
Like I said, I am familiar with the case. ‘Unjust Enrichment is a totally different beast to enforceability of ‘time is of the essence’ clauses. The case you mentioned addressed an issue involving ongoing dealings (amongst various other things). This is also very different to a single dealing.
Robert Bou-Hamdan
Mortgage AdviserOld thread relived, but it’s the least I can do given the education gleaned from here and ah…
from the ATO and the ITWV (formerly 221D)
http://www.ato.gov.au/corporate/content.asp?doc=/content/57470.htmand downloading their PDF (being a non Microsft User – must mean that having Microsft on your computer is a tax rebate as it is the only way to access their forms online! – I thought I was kewl not having to pay for Linux!)
Section C: Rental details
If you are required to complete these items and you do not complete them, your application will be returned to you.
Percentage owned
Joint tenants and tenants in common must divide the income and expenses in accordance with their legal interest in the property. With
joint tenancy, each tenant holds an equal interest in the property. For example, if you and your spouse are the only names listed on the
title deed and you are listed as joint tenants, show 50% at the percentage owned item. A partnership agreement, either oral or in writing,
cannot change this.BTW – all went well re- settlement & I have received income already [fez] Thanks again guys
You must be logged in to reply to this topic. If you don't have an account, you can register here.
