(03) 9720 2922

Jansen Walsh & Grace

  

Buying a commercial property

 



What we do
Our firm has 35 years’ experience, first as Jansen Walsh & Associates, and during the last 30 years as Jansen Walsh & Grace.    We have another page with additional information on buying investment properties.  We have also another page with additional information if your superannuation fund is buying the property.  We can assist you in selling your commercial property or purchasing one.

BREAKING NEWS: you can now claim damages from vendor for default
When the purchaser defaults, it is easy for the vendor to seize the deposit and sue the purchaser for damages.  Not surprisingly, as the Contract of Sale is drafted by the vendor’s lawyers.  What if the vendor defaults?  Purchasers were often told by their lawyer or licensed conveyancer they had no remedy other than getting their deposit back.  The decision of the Supreme Court on 31 August 2020 shows that a purchaser can sue the vendor for damages.  In that case, the vendor was unable to get the mortgagee (a bank) to grant a discharge of mortgage and the caveator to give a withdrawal of caveat at settlement.  The Supreme Court awarded the purchaser damages for his loss.



GST
The main issue is whether the property is being sold as a going-concern and how to treat GST.  The existence of a retail or other commercial lease is also important, since it is important to clarify whether the transaction includes the reversion under the lease.

Effect of the royal commission into banking industry
Since 1 May 2018, we have seen the banks' credit departments take much longer to approve loans, and, in addition, they are now applying stricter lending criteria.  This is a consequence of the hearings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.  For this reason, we advise you to consider whether you should make your purchase subject to finance for a period longer than the usual 10 days (often a vendor of a commercial property will not sell subject to finance) and to extend the time for settlement until 60 days.  The usual 30 days might not be time enough for your lender.


Withholding GST
You will have to pay one-eleventh (or 7% for margin schemes) of the sale price to the Australian Taxation Office.  The vendor is entitled to a GST credit for an amount withheld by you from the contract consideration but only if and when the purchaser pays the withheld amount to the Commissioner.

Land transfer duty and transfer registration fee
If you are borrowing to fund part of the purchase price, your lender will calculate the land transfer duty and the transfer registration fee.  However, you can calculate the land transfer duty and the transfer registration fee, if you wish.  It does not deal with off-the-plan purchases.