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Once a buyer has made the decision to commit to the purchase of a commercial property there are a number of important steps to take during the settlement and post-settlement phases.

Settlement of commercial property generally takes longer than the typical 30-day settlement period for residential properties because of there are considerably more issues involved in handover – from financing and due diligence, to reviewing existing leases on the property and other documents associated with the asset.

We’ll take a closer look at some of these formalities in this article which our commercial property legal experts at PD Law have ample experience and expertise in.

The due diligence process

Once the contract to purchase has been agreed to between seller and buyer, we’ll provide you with a purchase pack that contains all key documentation including the contract.

It’s always advisable for due diligence to be made a condition of the contract so that the buyer can conduct more extensive checks to make sure the property will be commercially viable.

Searches on council rates, zoning and business use approvals for the site, building and pest inspection reports, equipment testing reports (air-conditioning, fire prevention, etc) as well as lease inquiries and whether the property is within or comprises a body corporate, are examples of the information a buyer should be in possession of before the deal is complete. Additionally, a land tax search and obtainment of a land tax clearance certificate is necessary to determine whether this impost is owing on the property and whether it needs to be accounted for in the settlement price.

Due diligence provides an opportunity for the buyer to terminate the contract and have the deposit refunded if the information produced is not to their satisfaction.

Leases and service contracts

One of the most important issues to deal with during the settlement process is reviewing any existing lease or leases entered into by the previous owner, as well as service contracts. It is crucial that one of our experts at PD Law, for example, review such lease agreements as part of the due diligence process or as a condition of the contract to ensure they do not contain clauses which create onerous or unusual obligations for the new landlord.

The items scheduled in a typical commercial property contract in Queensland will provide for disclosure of any leases, including the name of the tenant, the lease term, whether there are any options for the tenant to extend the lease, the rent payable and the use of the property by the tenant.

It’s important for the buyer to create diary reminders of the important dates applicable to the lease, such as expiry or when options for renewal are activated.

The seller is required to give a copy of all leases, as well as a statement it has done so, to the buyer after the contract is signed. The buyer has seven days to terminate the contract if they are not satisfied with the terms and conditions of any lease. If the buyer does not terminate the contract, they are bound by the disclosed leases, after completion of the contract.

The buyer is entitled to terminate the contract at any time before settlement, even if the contract is unconditional, if information in the lease schedule – such as the amount of rent to be paid by the tenant or the period of the lease, for example – is incorrect.

Additionally, a seller cannot – without the consent of the buyer – accept a surrender of lease, grant a new lease, vary an existing lease, assign an existing lease, or negotiate or set new rent in breach of the contract.

If the tenant had paid rent in advance to the seller, the sale price of the property will be reduced by the outstanding amount. If the tenant is in arrears, the seller has the responsibility for retrieving the outstanding amount from the tenant after settlement. The seller also provides the buyer with a Notice of Attornment which the buyer gives to the tenant after settlement, confirming sale of the property and directing the tenant to pay future rent to the new owner.

If the property is subject to any service contracts (for maintenance and cleaning, for example), the terms and conditions of those contracts should also be reviewed as part of the due diligence process with the costs considered in the overall market value of the property.

Getting other documentation in order

An important aspect of the settlement period is ensuring all document relating to the property are reviewed. These documents include the building’s certificate of occupancy (formerly certificate of classification, providing information about the building’s class; how the building can be used; ongoing maintenance requirements; fire safety; other special requirements), the building’s plans and drawings, documents to manage tax (such as depreciation) and lease documents (as discussed above).

Depending on the business structure used to buy the commercial property (partnership, company, trust, etc) a buyer should also update their will to reflect the significance of the asset and provide certainty to beneficiaries about how it will be handled if something happens to the owner.

The buyer should contact their financier one month after registration to obtain a registration confirmation certificate. If a financier was used for the purchase, the buyer’s legal representative can send this once received.

Rely on expert advice

At PD Law seeing through commercial property transactions to completion is a specialty of our legal professionals. From an initial discussion about the risks involved in investing in the commercial asset through the contract, settlement, and post-settlement considerations addressed in this article, we can help streamline the process for the would-be commercial property owner. Contact us today to talk through your commercial property investment.

This article follows on from our recent post providing a checklist of essential things to do when buying a commercial property, this time dealing with the important issues of financing, risk and GST implications.

Commercial property can be a lucrative investment but it’s important to do the necessary groundwork before the purchase to reduce your risk and other potential difficulties.

The importance of finance

A major component in the process of acquiring a commercial property is organising finance well before the contract-signing stage, such as a loan covering the purchase price as well as GST, stamp duty, legal fees and any others costs associated with the transaction. It’s important for a would-be owner to understand what their loan repayments will be before undertaking more detailed due diligence on the property. A risk and return assessment should be conducted with a financial adviser or mortgage broker.

If the buyer needs a loan to acquire the property, the contract will likely be subject to finance approval, allowing the seller to terminate the deal should financing not be secured. This condition will usually be reflected in a ‘finance’ section of the contract, providing a date by which the finance condition is to be complied with – usually 14 or 21 days from the date the contact is signed by all parties.

It should be noted that commercial property is generally considered a riskier investment when compared with residential property due to its exposure to economic slumps and fluctuations. Commercial borrowers do not have the same protection as home buyers. Where a buyer of a residential property can borrow up to 90 per cent of the purchase price, most lenders require borrowers for a commercial property to have a minimum contribution of 30 per cent, meaning they will consider lending up to 70 per cent of the property’s value. Lender’s mortgage insurance is also not available for commercial property owners so a sufficient upfront deposit or equity is essential to secure the loan.

A key consideration for a lender to a would-be buyer is the commercial property’s ability to generate stable rental income from tenants. This can be demonstrated through the lease agreement with the current tenant, showing that the rent can cover the loan repayments or, alternatively, through a profit and loss forecast showing that the loan will allow your business to earn additional income sufficient to cover the repayments.

A borrower for commercial property will often need to provide a residential property as security for the loan, while most bank lenders will also insist on a General Security Agreement (GSA) over the property and any and all of the business’ assets. This requirement may be waived if it can shown income generated by the property will service the debt.

Risks associated with commercial property

The question of risk in buying commercial property is generally a reference to insurance. In many cases, taking our commercial property insurance is required before finance can be secured to purchase the asset.

The standard conditions of most commercial property contracts in Queensland state the property is at the risk of the buyer from 5pm on the next business day after a contract has been signed by both parties. A potential buyer should, therefore, arrange an insurance cover note for the property as early as possible. Likewise, a seller should maintain the existing insurance on the property until it is sold, as security against the possibility the property is not insured by either party and then becomes irreparably damaged after a contract is signed but before it becomes unconditional.

Other risks also need to be considered by a commercial property owner in the event they became unable to make mortgage payments, or in the case of a tenant defaulting by going into receivership. Life insurance, income protection or specific property insurance may be required to mitigate these realistic possibilities.

Consider how much GST adds to the purchase price

Australia’s goods and services tax needs to be considered in any property transaction, with attention paid to whether the purchase price for the asset includes GST. The GST rate for commercial transactions is currently 10 per cent. In most cases, the GST payable on the sale of property is included in the sale price and is paid by the seller.

A seller’s obligation to pay GST will generally depend on whether they are registered – or are required to be registered – for tax purposes. If registered for GST purposes, the seller is obliged to pay GST unless some special exemption applies. A buyer who is registered for GST and intends to use the property for business purposes can claim that tax component in their next business activity statement, though the requirement to pay it upfront can result in a cash flow problem in the short term.

A commercial property sale will generally be exempt from GST if the business is sold as a ‘going concern’, meaning the seller is selling an enterprise, including any assets used in that enterprise, to the buyer. Partial GST may also be paid under the Margin Scheme, an alternative way of working out the GST to be paid when a commercial property is sold as part of a business.

If a buyer purchases a commercial property where there is a lease agreement in place, they may be required to pay GST on the rental income from the tenant.

Stamp duty: A buyer should also keep in mind this state-based tax on the purchase, to be paid either on the basis of the unencumbered value of the property or on the basis of the consideration (the payment the buyer agrees to make) for the property. The dutiable value – the higher amount of the two values listed above – is the stamp duty the buyer will have to pay on the transaction.

Speak with commercial law specialists

For any of the issues raised in this article, buyers should not only contact commercial property specialists such as mortgage brokers but also experts in commercial and property law such as our team at PD Law. From the terms of the contract to what you should know before arranging financing, assessing the risks involved in making the investment and working out GST and other tax obligations, we can provide clear advice and expert guidance through to completion of the deal. Contact us today for an initial discussion.

For many people buying a small business is their most viable path to a desired life working for themselves, compared with the riskier proposition of starting a business from scratch.

In this article, we’ll outline some of the advantages and disadvantages of buying a small business, the benefits of various entities used to purchase the business, the wisdom of using a consultant during the purchase process, and the importance of the due diligence process both before and after signing the contract.

Discussing these issues with experienced legal professionals is a sensible course of action to check all the necessary steps are taken to make the right decision.

Advantages and disadvantages of owning a small business

Notable advantages to purchasing an existing small business include:

Cash flow: An established, profitable business can produce immediate financial returns and provide records that can be used to attract other investors or partners.

Clients and customers: A well-run business has an established client base which a committed new owner can build on and expand.

Plant and equipment: Depending on the proposed deal, essential equipment used to operate the business can be part of the purchase.

Goodwill: A well-established venture will have a ‘good name’ which becomes part of its value when it comes time to on-sell the business.

Among some of the common disadvantages of purchasing a small businesses are:

It may not be a ‘going concern’: If establishment of the business is incomplete and needs more funds for equipment or fit-outs, for example, this can be an immediate financial drain on the new owner.

Existing debt: Depending on the structure of the deal, a new owner may need to assume the former owner’s debts and other liabilities, and pay existing debtors on time.

Fees and charges: Besides the purchase price, fees for legal and accounting services need to be accounted for, as well as other expenses such as stamp or transfer duty.

Loyalty to former owner: It’s in the nature of small business that some proprietors will develop a loyal following which may not continue with the new owner.

Overstated goodwill: The concept of goodwill is a notoriously difficult concept to value and can be overstated by a prospective seller to inflate the sale price.

Locked-in contracts: Part of due diligence (discussed below) in purchasing a small business is to check whether the enterprise is locked in to long-terms contracts with suppliers, maintenance/cleaning or other services, which might be on unfavourable terms for the business.

Which structure should be used to buy the business

There are also advantages and disadvantages to the different business structures used to purchase and run the enterprise, be it as a sole trader or a company. Business registration, tax, intellectual property and other legal or financial obligations all differ depending on business structure, while the size and type of the business may dictate the best structure for owning the entity.

While operating as a sole trader offers the owner control and nimbleness to make necessary changes in the business, the chief drawbacks are personal liability for business debts and the possibility of losing personal assets if the business fails. Tax will also be charged at the individual’s marginal rate rather than a lower corporate rate. A partnership brings similar benefits and risks.

A company, by contrast, is a separate legal entity and losses will be carried by shareholders in the entity rather than the individual owner. Legal dealings are conducted in the company’s name, shares may be transferred to other people, and the entity is taxed at the lower company rate.

There are a variety of other structures, each of which has its own pros and cons, depending on what buyers are looking to achieve, how much control and protection they’d like, as well as how easily they can exit, to name a few.

The role of consultants

Engaging a consultant at the outset once you’ve decided to purchase a small business can save you time and stress. An experienced consultant can help a prospective owner develop a business plan, assess the financial and operational fundamentals of the business, help re-shape its focus, and create a marketing/public relations strategy and advertising campaign. Consultants may have different skill sets, or combine a number of skills in accounting, financial arrangements and legal obligations in one service.

Importance of the due diligence process

Doing the necessary research on a business that is up for sale is a crucial stage both in the lead-up to signing the contract and afterwards.

Financial records, legal documents and details of how the business operates – including its contracts and leases, existing deals with suppliers, its staffing levels, codes of conduct and human resources records, assets, inventory, licences, permits and liabilities – should all be discovered during this period in order to make an informed decision.

Due diligence helps a buyer to determine whether the business is properly valued and uncover any issues that could affect profitability now or into the future. Having a trusted, independent person examine the business’ financial records is perhaps the most important aspect of due diligence. This step should comprise close checking of the past three-to-five years of the business’ financials including tax returns, BAS, accounts receivable and payable records, balance sheets, profit and loss records, cash flow statements and sales records. This process will help answer the question of whether the business has outstanding debts on assets or to external suppliers.

Other costs

Buying a small business will attract expenses such as transfer duty on the purchase. The would-be owner needs to budget for this outlay as well as licence or lease assignment fees, bank loan fees (bank guarantee advice), legal fees, accountant fees and set-up costs.

Consult with experienced legal professionals

At PD Law we have helped many people into business ownership by making the processes described above easier to navigate. If you have a small business in your sights, we can assist with the discovery process and ensure the elements discussed in this article are methodically checked off so that a judicious decision is made and the business gets off to a flying start under new management.

Investing in commercial property can be a lucrative decision provided the asset is well located and the right steps are taken in the lead-up to the purchase. From doing due diligence on the property’s viability as a commercial premises to reviewing the lease with the tenant and understanding the tax implications of the purchase given your business structure, there is a lot to get right to realise your return on investment.

In this post, we’ll try and address some of these key considerations to help make the process clearer, while reminding that the advice and guidance of a legal firm with real-world experience in the buying and leasing of commercial property can be essential to getting it right before committing time and money.

Business structures and tax implications

Before embarking on a commercial property investment it’s important to understand how your business structure will affect the tax payable on the asset – which may determine whether it is worth going forward with the investment or not.

Individuals: Owning the property in your own name can be the simplest way to secure a commercial asset, when compared with business other structures. Rental income is incorporated as part of your assessable income and taxed at your marginal tax rate. This means negative gearing losses on the property may be offset against your income.

Like owning residential property, tax must be paid on any capital gain made from the sale of a commercial property, which will be added to the individual’s assessable income. Goods and services tax (GST) may also be charged on the sale price if the ‘going concern’ assumption isn’t satisfied – this means that both the buyer and the seller are registered for GST, that there is a current lease in place on the property, and that everything necessary is being done to support the ongoing operation of the business. The buyer then pays GST on one-eleventh of the sale price and claims credits on purchases that relate to selling the property.

If you’ve owned the property as an individual (or as part of a partnership or a trust – see below) for at least 12 months, you may be eligible to discount your capital gain by 50 per cent.

Partnership: Two or more partners who carry on a business in common with a view to profit are also considered a partnership for tax purposes if they own a commercial property together. Each partner, therefore, claims a share of any net profit or loss incurred by the partnership so that if its commercial property is negatively geared, each partner may offset their share of the net loss against their own income. If each partner is an individual or owns their share through a trust, the 50 per cent CGT discount will apply if the property is sold and a capital gain is made, provided that the property has been held for at least 12 months before its sale.

Company: At the outset it should be noted that commercial property owned by a company becomes one of its assets and therefore can become the subject of civil litigation or bankruptcy proceedings. But signficantly, tax paid on the property’s net rental income is charged at the corporate tax rate, which is lower than a high-earning individual’s marginal tax rate (inclusive of the Medicare levy). Capital gains are also taxed at 30 per cent and some companies may be eligible for small business CGT concessions.

Negative gearing losses on the property, however, must be absorbed by the company and can’t be employed to offset another entity’s income. The loss, however, can be carried forward indefinitely or used to offset the company’s future income and capital gain if the property is sold.

Property held within a company structure must also pay GST on one-eleventh of a commercial property’s sale price, but can claim GST credits on purchases that relate to selling the property.

Trust: Commercial property can be held by a unit trust, family discretionary trust or hybrid trust. Property held within a discretionary trust is generally protected in the event of litigation against a beneficiary of the trust.

Another key benefit of commercial property held within a trust structure is taxation because the trustee can distribute different amounts of net rental income to different beneficiaries based on their tax position each year, minimising each beneficiary’s tax liability. Like individuals and partnerships, if the trust makes a capital gain after owning the property for at least 12 months before it is sold, the 50 per cent CGT discount will be available if the capital gain is distributed to an individual or another trust.

Self-managed super fund (SMSF): Using this entity for purchasing commercial property is considered complex but the pay-off is the substantial tax benefit available. Rental income from the property is taxed at 15 per cent when held by an SMSF, and drops to zero at the time the fund moves into its pension-paying phase.

SMSFs can claim a capital gains tax discount of 33 per cent while the fund is in the accumulation period after the asset has been held by the fund for more than 12 months. The fund pays 15 per cent tax on two-thirds of the capital gain, equal to 10 per cent of the total capital gain. Negative gearing the property under the SMSF structure is not as effective as for an individual, because the losses are only offset against income taxed at 15 per cent during the accumulating phase.

SMSF entities must be registered for GST if they own a commercial property and annual turnover exceeds $75,000. GST must be paid on one-eleventh of the sale price, but GST credits can be claimed on any purchases that relate to selling the property.

It’s important to note tax deductions can generally be claimed by commercial property owners under the structures discussed above. These include interest paid on the loan used to purchase the property, travel costs related to attending the property, repair, maintenance and property management expenses, and depreciation of the asset.

Seek expert tax advice

What we cover here is general only in nature, subject to a number of exceptions and qualifications, and also invariable changes in the law. Suffice to say it is vital that you take advice from your accountant before settling on the structure you intend to use.

The importance of due diligence

The due diligence process is crucial before an investment in commercial property for a buyer to be fully aware of the technical, legal, financial, planning, environmental and risk management issues associated with the asset. Areas requiring close attention before signing a contract of sale include:

Condition of the building: An established service industry to commercial property investors is building consultants, who can be contracted to complete a comprehensive technical report assessing the asset’s structure, from façade and walls (external and internal), roof and guttering, ramps and stairs, entry lobbies, floors & floor finishes (carpets, tiling, etc.), ceilings, stairways and amenities such as kitchenettes.

The report can also assess any mechanical and electrical systems such as lifts, escalators, switchboards and airconditioning, and also address fire protection systems, water supply, sewerage and stormwater systems.

Location: This is perhaps the most important of all considerations for a commercial property and requires a prospective buyer asking questions including:

• Is the building located in a good area with foot traffic, parking and access to public transport?
• Are there zoning regulations which will restrict what commercial use the property can be put to?
• Is the property close to amenities such as schools, transport and other shops?
• Are there direct competitors close by?

Planning and environment: This step involves discovery of current zoning and height restrictions to confirm the property can be used for the commercial purpose you intend; reviewing changes made to the original development application; obtaining copies of original occupation and development certificates; fire safety statements; recent environmental or heritage assessments, and any existing contamination issues (e.g. asbestos, etc.).

If buying vacant commercial land, a buyer should obtain a signed written notice from the seller or agent stating that the land is of a commercial nature and is not capable of being used for residential purposes, now or into the future.

Financial: A financial assessment includes examining an existing lease of the building and, if not leased, the current market conditions that determine the likely value and potential of renting the property.

Assessing lease arrangements involves sourcing lease documents from either the current owner or the tenant to discover:

• expiry dates and options to renew, including the rent review process and its frequency;
• whether there are planning approvals granted prior to entry into the lease;
• that there are no ‘first rights of refusal’ to purchase;
• that there are no other restrictions within leases that might affect the sale or your capacity to operate or expand the building;
• details of any bonds/deposits/bank or personal security guarantees held;
• details of tenant’s agreements regarding maintenance and repair;
• details of any caveats lodged;
• whether the tenant/s are in arrears;
• whether GST is being charged (longer-term leases may not include this provision, which may affect the buyer’s decision to purchase).

Title: The land title of the property should be checked to see there are no liens or encumbrances on the property, no easements or rights of way, and that it is registered in the correct name.

Leases: A would-be buyer should first check the lease of any existing tenant/s to determine both its length and its terms. A lengthy lease on favourable terms to the tenant may be influential on the decision to purchase. Likewise, the need to find new tenants could be off-putting. The length of the lease may also affect the buyer’s ability to renovate and alter the property.

Insurance: Any commercial property should be covered for public liability, contents and the risks of fire, flood, theft and vandalism. If finance is needed to purchase the property, the lender will likely require a policy that provides coverage equal or greater than the value of the loan.

Seek expert legal advice

Legal professionals with specialist knowledge of purchasing commercial property can make the due diligence process described above far more streamlined and stress-free. At PD Law, we can check existing leases, caveats and covenants over the property, title details, existing maintenance contracts, insurance policies and all of the many other details required to make a fully informed investment decision on commercial property.

For more information on any of the material covered in this article, contact PD Law today for a comprehensive initial discussion.

It’s no secret that many people buy into community title developments without necessarily appreciating all of their costs. On top of this, catastrophic weather events such as cyclones and floods have resulted in staggering increases in insurance costs, described as ranging from substantial to outright unviable.

It’s also no secret that some lot owners will … not may … struggle with payment of increased levies. Armed with this inevitability, it’s crucial that bodies corporate face this nacent problem head on practively to avoid their own catastrophes.

Debt collection should not be the first lever to pull, and frankly, going through the stock warning letters is not always going to yield favourable results. We’ve seen it have the opposite effecrt, driving those owners already on the edge further into denial territory.  

Instead, proactive committees have an opportunity to be actively inviting lot owners who may struggle with increased levies to discuss alternative payment plans to try to avoid unnecessary legal cost. It may involve an extra step or two by way of extraordinary meetings but the alternative is legal spend and we know who wins…

Although some circumstances may require immediate and urgent action, as a general rule internal management avenues should be completely wrung out before pressing the legal action button. A second and very important benefit in doing this will bolster the body corporate’s position that its recovery costs are reasonably incurred.

If we can help, give us a call, even just to clarify options. We don’t just move straight to debt recovery action – we’ll try to find a plan B with you first.

To make an inquiry or book an appointment, phone 4946 6670 or book online 24/7.

For further information go to www.pdlaw.com.au/family-lawyers or email enuiry@pdlaw.com.au