Buying property as couple with unequal economic and legal ownership (PR)

01-07-2007, 11:55 AM

Tim and his partner have received permanent residency just recently
(and starting their two year waiting time in spouse migration
procedure), they are able to buy property when permission is granted by
the FIRB (not yet requested). They want to have the economic ownership
of the property for 100% on Tim, not on both.
Is that possible/allowed by the FIRB?

Anyone...?
Thanks
Prem

01-07-2007, 07:17 PM

> Tim and his partner have received permanent residency just recently
> (and starting their two year waiting time in spouse migration
> procedure), they are able to buy property when permission is granted
> by
> the FIRB (not yet requested). They want to have the economic ownership
> of the property for 100% on Tim, not on both.
> Is that possible/allowed by the FIRB?
>
> Anyone...?
> Thanks
> Prem

This is an inconsistent statement. What exactly do you mean?

01-07-2007, 08:48 PM

> Tim and his partner have received permanent residency just recently
> (and starting their two year waiting time in spouse migration
> procedure), they are able to buy property when permission is granted
> by
> the FIRB (not yet requested). They want to have the economic ownership
> of the property for 100% on Tim, not on both.
> Is that possible/allowed by the FIRB?
>
> Anyone...?
> Thanks
> Prem

WHo is Tim? Why are you asking on his behalf? Are you acting on his
behalf - as a migration agent, or even real estate agent?

01-07-2007, 10:33 PM

> Tim and his partner have received permanent residency just recently
> (and starting their two year waiting time in spouse migration
> procedure), they are able to buy property when permission is granted
> by
> the FIRB (not yet requested). They want to have the economic ownership
> of the property for 100% on Tim, not on both.
> Is that possible/allowed by the FIRB?
>
> Anyone...?
> Thanks
> Prem

Hi Prem,

This is simply a question of how the property transaction is conducted.
Just talk to a lawyer or conveyancer wherever you, or they, are.

Cheers,

George Lombard

01-08-2007, 09:05 AM

The simple answer is - of course - but it's Tim, not 'they' who will then be
buying the property, and indeed own it!

Tim and his partner are separate individuals, with each their own rights.

If they buy something as 'joint tenants' it is assumed that ownership is 50%
each - unless a contractual arrangement beforehand - or legal action
subsequently, prove other wise.

I think they need to consult a lawyer (Australian) - they would appear to
have limited appreciation of the concept of property ownership - and the
strength of contractual arrangements.

"Prem" <> wrote in message
news:...
> Tim and his partner have received permanent residency just recently
> (and starting their two year waiting time in spouse migration
> procedure), they are able to buy property when permission is granted by
> the FIRB (not yet requested). They want to have the economic ownership
> of the property for 100% on Tim, not on both.
> Is that possible/allowed by the FIRB?
>
> Anyone...?
> Thanks
> Prem
>

01-08-2007, 10:59 AM

Thank you for your replies, I forgot to say what my relation is to Tim
and his Australian partner: he is my uncle, and I helped him to migrate
to Australia (successfully, as it appears).
I am indeed also consulting a lawyer, but post this to have a second
opinion, because lawyers are lawyers, and not always well informed or
having experience with the FIRB behaviour (I say behaviour because from
other sources I hear that they are sometimes inconsistent when
situations are not very common)

I know in Europe i.e. 50/50 legal ownership with 0/100 economic
ownership is possible when buying property as a couple. In Australia I
dont know. And what Firb wants in this, I cant find anywhere.

Anyway...I'll wait for my appointment with my (regular) lawyer.

Cheers
Prem

A Mate schreef:

> The simple answer is - of course - but it's Tim, not 'they' who will then be
> buying the property, and indeed own it!
>
> Tim and his partner are separate individuals, with each their own rights.
>
> If they buy something as 'joint tenants' it is assumed that ownership is 50%
> each - unless a contractual arrangement beforehand - or legal action
> subsequently, prove other wise.
>
> I think they need to consult a lawyer (Australian) - they would appear to
> have limited appreciation of the concept of property ownership - and the
> strength of contractual arrangements.
>
>
>
>
>
> "Prem" <> wrote in message
> news:...
> > Tim and his partner have received permanent residency just recently
> > (and starting their two year waiting time in spouse migration
> > procedure), they are able to buy property when permission is granted by
> > the FIRB (not yet requested). They want to have the economic ownership
> > of the property for 100% on Tim, not on both.
> > Is that possible/allowed by the FIRB?
> >
> > Anyone...?
> > Thanks
> > Prem
> >

01-10-2007, 12:10 AM

Ok I received some legal information, and in our case 'Tenants in
Common' would apply.
I just wonder if the FIRB would agree with Tenants in Common for Tim
with his (still temporary) spouse migration visa. If someone knows,
please let me know.

Som legal background info, for those who are interested:

Tenants in Common:

1.The interest in the land of each tenant in common is separate and
distinct from the other.
2.The interest can be equal half shares each or any other shares (eg.
it may be 1/3rd for one and 2/3rd for the other or it may be 1/100th
for one and 99/100th for the other).
3.There can be several owners as tenants in common all with different
shares.
4.All tenants in common are entitled to physical possession of the
whole property.
5.Tenants in common can each deal with third parties as to their share
as a separate owner, generally without the need for other co-owner's
consent (unless they have a co-ownership agreement in place).
6.Tenants in common can acquire their interests at different times and
from different people.
7.Each tenant in common is free to sell or otherwise deal with their
interest in a property at anytime (unless there is in place a
co-ownership agreement which contains terms restricting this).

Joint Tenancy:

1.The interest of each joint tenant is not separate or distinct from
the other. Each is entitled to an undivided interest in the whole
property - that is, they each own the whole.
2.There are no separate shares as each owns an undivided part of the
whole.
3.There can be more than 2 owners as joint tenants but none will own a
distinct share.
4.All joint tenants are entitled to physical possession of the whole
property.
5.In dealing with third parties joint tenants must act as a single
owner.
6.Joint tenants must acquire the property at the same time from the
same person.
7.Generally each joint tenant can only act at the same time as the
other one. They must act together. Any independent dealing with the
property by one joint tenant is likely to result in the "severing"
(or ending) of the joint tenancy, effectively converting the
co-ownership relationship to a tenancy in common.

01-15-2007, 10:31 PM

Prem wrote:
> Tim and his partner have received permanent residency just recently
> (and starting their two year waiting time in spouse migration
> procedure), they are able to buy property when permission is granted by
> the FIRB (not yet requested). They want to have the economic ownership
> of the property for 100% on Tim, not on both.
> Is that possible/allowed by the FIRB?
>
> Anyone...?
> Thanks
> Prem

This sounds curious - which one is awaiting a spouse visa it can't be
both of them? How can this be if one is not already a permananent
resident or Australian citizen? What is Tim's status?
Also, what kind of property are they proposing to buy?
The answer to the property ownership questions depend on this
information.

01-15-2007, 10:41 PM

Prem wrote:
> Thank you for your replies, I forgot to say what my relation is to Tim
> and his Australian partner: he is my uncle, and I helped him to migrate
> to Australia (successfully, as it appears).
> I am indeed also consulting a lawyer, but post this to have a second
> opinion, because lawyers are lawyers, and not always well informed or
> having experience with the FIRB behaviour (I say behaviour because from
> other sources I hear that they are sometimes inconsistent when
> situations are not very common)
>
> I know in Europe i.e. 50/50 legal ownership with 0/100 economic
> ownership is possible when buying property as a couple. In Australia I
> dont know. And what Firb wants in this, I cant find anywhere.
Trustee arrangements and differences between economic/legal ownership
are quite possible under Australian law. The FIRB attitude to this
depends on the current status of Tim (it appears he has the first stage
of spouse permanant visa) & the type of interest in property you are
considering - is it existing urban residential freehold property?
>
> Anyway...I'll wait for my appointment with my (regular) lawyer.
*Ensure* they are familiar with 1)property/equity; 2) FIRB law & regs
3) Family law requirements of assigning property between spouses.
>
> Cheers
> Prem
>
>
> A Mate schreef:
>
> > The simple answer is - of course - but it's Tim, not 'they' who will then be
> > buying the property, and indeed own it!
> >
> > Tim and his partner are separate individuals, with each their own rights.
> >
> > If they buy something as 'joint tenants' it is assumed that ownership is 50%
> > each - unless a contractual arrangement beforehand - or legal action
> > subsequently, prove other wise.
> >
> > I think they need to consult a lawyer (Australian) - they would appear to
> > have limited appreciation of the concept of property ownership - and the
> > strength of contractual arrangements.
> >
> >
> >
> >
> >
> > "Prem" <> wrote in message
> > news:...
> > > Tim and his partner have received permanent residency just recently
> > > (and starting their two year waiting time in spouse migration
> > > procedure), they are able to buy property when permission is granted by
> > > the FIRB (not yet requested). They want to have the economic ownership
> > > of the property for 100% on Tim, not on both.
> > > Is that possible/allowed by the FIRB?
> > >
> > > Anyone...?
> > > Thanks
> > > Prem
> > >

01-15-2007, 11:08 PM

George Lombard wrote:
> > Tim and his partner have received permanent residency just recently
> > (and starting their two year waiting time in spouse migration
> > procedure), they are able to buy property when permission is granted
> > by
> > the FIRB (not yet requested). They want to have the economic ownership
> > of the property for 100% on Tim, not on both.
> > Is that possible/allowed by the FIRB?
> >
> > Anyone...?
> > Thanks
> > Prem
>
> Hi Prem,
>
> This is simply a question of how the property transaction is conducted.
> Just talk to a lawyer or conveyancer wherever you, or they, are.
>
> Cheers,
>
> George Lombard

No. No. No.
The FIRB will look to the reality of the transaction to determine its
legality. It is *not* just a matter of form. Any unlawful equitable
acquisition of Australian property by a foreigner under a trustee
arrangement will be seriously dealt with by the FIRB, and an attempt to
dress up a transaction will be viewed as a deliberate attempt to
obscure a criminal act. It may be that what you want to acheive is just
not allowed under Australian law, and you may have to avoid the
transaction altogether or undertake a different compromise transaction.
The exemptions from FIRB approvals are only available for real *joint
tenants*, not 100% trustee arrangements disguised as something else.

cheers
KR