On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Can I record the name of a Self Managed Superannuation Fund (SMSF) on title?

Unless a SMSF is a legal entity entitled to hold land (for example company ‘SMSF Pty Limited’), it cannot be recorded on title as the owner of land. Under section 82(1) Real Property Act 1900, the Registrar General is prohibited from recording in the Register any notice of trusts whether express, implied, or constructive. This prohibition extends to dealings, since registered dealings form part of the Register under section 31B Real Property Act 1900.

How do I protect my interest in property held by a SMSF?

If the members or contributors to a SMSF wish to protect the registered interests held for them by a trustee, a Subscriber may lodge a caveat with NSW LRS to have the individual interest recorded on the Register.

Alternatively, a Subscriber may prepare and lodge a declaration of trust using the Request form 11R. A copy of the duly stamped original of the instrument declaring the trust must be uploaded with the Request.

NSW LRS will then prepare and register a Registrar General’s caveat to protect the interest notified in the declaration of trust under section 82(2) Real Property Act 1900. Any dealing or plan lodged affecting the interest after the registration of a Registrar General’s caveat will be scrutinised by the Registrar General to ensure that it is not contrary to the terms of the declaration of trust pursuant to section 82(3) Real Property Act 1900.

To remove a Registrar General’s caveat, a Subscriber must lodge a new Request Form 11R together with an explanation (by way of statutory declaration) as to why the Registrar General’s caveat is to be removed, including why the protection of the caveat is no longer required.The Request for removal must also be accompanied by the consent of each of the beneficiaries of the trust.

How do I satisfy Australian Tax Office (ATO) requirements for SMSF real property assets?

The ATO has advised NSW LRS that registration of a private caveat or declaration of trust on title is sufficient to demonstrate the ownership of the real property assets of the SMSF and will satisfy the standard of sub regulation 4.09A(2) Superannuation Industry (Supervision) Regulations 1994.
 

Publication Date: July 2024