In 2013 the government introduced a Foreign Resident Capital Gains Withholding Tax for sales of certain Australian property at a value of $2,000,000 and over.

For contracts dated after 1 July 2017 this was amended and the Foreign Resident Capital Gains Withholding Tax now applies to all Australian residents selling real estate with a market value of $750,000 or more.  All Sellers of property of $750,000 or more will need to apply for and obtain a Clearance Certificate to ensure that no withholding amount will need to be taken from the sale proceeds.

If a valid Clearance Certificate is not provided by the time of settlement, the Buyer is required to withhold 12.5% of the purchase price and to pay that amount to the Australian Taxation Office (“ATO”).

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In the excitement of making an offer, Buyers of farmland need to allow some time to get the proper advice from their accounting and legal advisors.  Both are vital to the proper construction of an offer to purchase as the implications contained in the detail of the contract can have a long-lasting effect on the outcome of the purchase.   WA Property Lawyers legal staff are readily available for a quick call or a detailed letter of advice when that is required.

Accounting advice is vital as the new purchase may be part of an overall plan to acquire property for future generations to take over at some time.  Buying the land in the correct entity is often vital to the outcome of a successful farm succession arrangement.  It may be that the land is purchased in a new Family Trust which needs to be established before the Contract is signed.   Whilst this can be done reasonably quickly, the decision on the correct legal entity to purchase the property is vital and if a new entity is to be established, it may take about a week to be established.

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When you are buying or leasing any land whether farming land, commercial land or residential land it is vital to review the title for the existence of any registered encumbrances.  WA Property Lawyers provide this service as a matter of course with every settlement.

An encumbrance is a legal interest held by or duty owed to someone other than the registered proprietor (legal owner) of property.  It creates a burden, obstruction or impediment placed (in most cases) on the certificate of title of the land.  An encumbrance exists where a person other than the registered proprietor of land has a right or interest in land that restricts or impairs the transfer of the land.  Typical encumbrances placed on properties are liens (such as mortgages) and limitations (being easements, covenants and restrictions).

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Water rights in Western Australia are governed by the Rights in Water and Irrigation Act 1914 (‘the Act’). Under the Act, you may need a water licence for taking or interfering with surface water, overland flow water or groundwater.

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Often when farmers are negotiating a sale of their farmland, prospective Buyers may require the right to access the land prior to settlement for various reasons.

Some of those reasons may be:

1. Property due diligence such as soil testing or mapping;
2. Weed control over summer;
3. Ground preparation for seeding, cultivation and soil amelioration;
4. Other General due diligence requirements.

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