Townsends Business & Corporate Lawyers solicitor Jonathan See explained that where an SMSF and its tenant have agreed to a reduction in rent, there are some important steps in implementing and documenting the relief.
It is important, Mr See said, to review the fund’s trust deed to ensure that there is nothing in the deed that could prevent the rent relief being agreed to by the trustee.
“Although it is very unlikely, because the deed is the fund’s rule book, the trustee must be able to say that they have checked the deed and confirmed that it contains no impediment or condition in relation to such a rent relief agreement,” Mr See said.
It is also vital for the trustee to review the lease to ensure the proposed rent reduction will not result in the lease being breached.
“The lease agreement governs the lease relations between the landlord and tenant, so any decision made in respect to the lease must be made pursuant to it,” he said.
“If there are no rent relief provisions, the parties are advised to vary the agreement to include such provisions allowing the rent relief. Although the regulations do not state that parties vary the lease, similar regulations in Victoria require the parties to either vary the existing lease or enter into a separate agreement.”
Varying the lease is important, Mr See added, as it provides an opportunity for parties to agree on the terms of the rent relief so long as it is in line with the regulations and helps clarify the terms of the rent relief actually agreed upon between the parties.
It also provides stability and control of the parties’ respective situations and prevents ambiguity or misunderstanding that could lead to potential disputes, he said.
“The rent relief provisions should contain the matters agreed by the parties such as documents to support a request for temporary rent reduction including proof of loss of income, manner of calculating the temporary rent amount, period when the temporary rent amount applies, treatment of accrued rent arrears as a result of rent relief, resumption of the original terms of the lease once COVID-19 is over, and other matters considered necessary to give effect to the rent relief,” he stated.
“Once the commercial lease agreement allows for the rent relief, the trustee can implement the agreed rent relief. As SMSF trustees have a basic obligation to keep a record of all its transactions, the trustee must ensure that it properly documents the rent relief.”
Although not mandatory, the SMSF client may also want to consider a registration of the variation of lease, he said.
“Registration gives the lease a legal status and recognises the rights of a tenant,” he explained.
“If somewhere down the track the fund decides to sell the commercial property during the lease period, the new owner will be bound to respect the lease and its variation, especially the rent relief.”
01 July 2020
For more than 20 years, Sam has been a financial planner helping individuals and families achieve their financial planning goals, by providing advice on Investment Planning; Insurance Planning; Tax Planning; Retirement Planning; and Estate Planning. Working with a network of highly skilled professionals in Sydney he is dedicated to providing high-quality advice and integrated wealth management solutions that simplify and enhance the quality of his clients' lives.
Sam established his own firm in 1997 and has overseen its steady development and growth. Attention to detail, good listening skills and great empathy are symbols of his appreciation by his clients. He has built long-term relationships with his growing client base and aims to provide excellent customer service.
Sam began his financial planning career in 1993 after completing a Bachelor of Science degree in 1991. Since this time he has accumulated many professional qualifications such as:
Sam has volunteered with the Cancer Council of NSW and can be seen almost every year volunteering or participating in the 7 bridges walk.
Away from the business, he enjoys spending weekends with his son. He is also a football (soccer) tragic and is a massive Chelsea FC fan.
Having worked for national financial planning companies in the past, George has extensive experience in the provision of advice in risk insurance, investments and retirement planning and is focused on forming long-term relationships with his clients.
George has been awarded a Masters of Commerce (Financial Planning) and a Bachelor of Commerce through University of Western Sydney as well as having the Diploma of Financial Services (Financial Planning).
Jane Lim is a friendly character with a bubbly personality. She has the unique ability of making complex information sound simple and easy to digest.
Jane entered the financial services industry in 2006, and worked with big blue-chip financial companies such as Count Financial Limited and AMP Financial Planning Pty Ltd.
She holds a Master's degree in Applied Finance through Macquarie University, and she is a member of the Million Dollar Round Table.
Being a self-confessed "tennis nut", Jane spends many weeknights in the tennis court, and is a frequent member of Sydney's Eastern Suburbs Tennis Competition.
Being a highly motivated professional, Jane is always eager to help her clients on a wide range of financial planning needs.
Mortgage Broker/Financial Planner
Paul has been a financial planner for over 15 years helping individuals and families successfully achieve their financial planning goals. He is very focused on building successful long-term harmonious relationships with his clients.
He provides a holistic approach on various aspects of financial advice encompassing areas such as Investment Planning; Insurance Planning; Tax Planning; Retirement Planning and has extensive experience and knowledge in these fields.
Paul's professional qualifications are:
Away from his professional life, he enjoys spending his time with his family doing various activities such as coaching his son and taking him to games. He is a very avid sports fan and a cricket enthusiast.
Client Services Manager
Christian joined Capitalwise as Client Services Manager, with backgrounds in both customer service and administration.
Christian is passionate in providing excellent customer service by being attentive to client’s need as well as being able to circumnavigate challenges.
He holds a Master's degree in Commerce specialising in Marketing through the University of New South Wales.
Volunteering is one of his delights in life, where he had spent time being involved with the Centre for Volunteering, St Vincent de Paul's Society, and Sculpture by the Sea in a variety of positions.
Jenny is a University of New South Wales graduate who joined the team as an Administration Assistant. She is keen to put her customer service and organisational skills to use, making sure day to day operations run as smoothly as possible.
Outside of work, Jenny focuses her efforts on karate and ice hockey. She can often be found coaching and practicing karate at her alma mater. The rest of her time is spent at one of Sydney’s many ice rinks playing, practicing, or officiating ice hockey.
B Econ (Hons) Cert IV FS (MB) Dip. FS (FP) AFB MeSAFAA
Max has over 20 years experience in the finance and lending industry of which over 15 years has been in financial advice. Max attained a Bachelor of Economics honours degree at The University of Sussex in 2004, after which he settled in Australia with his family.
Max has never stopped studying as he is always looking at ways he can better assist his clients and has studied many courses in financial advice, lending and technical analysis as he continues to try and stay ahead of his competitors in terms of the knowledge he can share with his clients.
Max has worked for several large and successful organisations before starting his own business in 2014. He has gained valuable experience from the likes of Lloyds Bank, American Express, HSBC, General Electric, Commonwealth Bank and Westpac. He draws on this vast experience to benefit his clients whilst bringing a much more personal touch than you would get from one of these larger organisations.
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