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Property transfers should be carefully considered

Stephen Males

Property owners wishing to gift ownership of their property to another party for estate-planning purposes should only do so after carefully considering their options.

The gift-giver ("the Grantor") can gift an interest in property to the recipient ("the Grantee") in three ways. The Grantor can:

gift the entire property, retaining no interest whatsoever;

gift a share in the property so that he and the Grantee hold together as either joint tenants or tenants in common;

or reserve a life interest in the property, gifting a remainder interest to the Grantee.

In all cases discussed here, the Grantor will have to pay Government stamp duty on the value of the property at the time of transfer. Government will assess the property's value and provide the Grantor with a final stamp duty figure, which is payable within one month.

The Grantor's advisor can give him a preliminary estimate of stamp duty prior to this assessment, which is calculated on a sliding scale according to the property's value.

The Grantor should be aware that once any transfer of an interest in his property has been completed, it cannot be reversed without the Grantee's consent except by intervention of the Courts, whose willingness to set aside the gift is by no means guaranteed.

Further, any future dealings involving the property such as mortgaging or selling it will also require both the Grantee's consent and their participation in the transaction.

If the Grantor decides to give the entire property, retaining no interest in it whatsoever, the Grantor loses all rights over the property.

The Grantee assumes complete control over who may reside there, as well as any proposed development and all other matters generally affecting the property.

The Grantee has the power to remove the Grantor from the property or force him to pay rent. Further, this form of transfer attracts the most stamp duty as the full interest in the property transfers to the Grantee.

The Grantor may decide to go this route nonetheless if he has alternative accommodation and/or other property. This may be an attractive option where the gifting of property is an estate planning exercise designed to reduce or eliminate tax payable upon the Grantor's estate at death.

The second option, whereby the Grantor allows himself the option of owning the property jointly with the Grantee as either joint tenants or tenants in common, is ideal where the Grantor is comfortable sharing both responsibilities and benefits regarding the property with the Grantee.

In the case of joint tenancy, the rule of survivorship applies, which means that the survivor of them will ultimately own the property outright.

This is fine where one spouse gifts an interest to the other, but may be less ideal where the Grantor gifts interest to multiple children, for example, as ultimately the child living the longest benefits where the others do not.

Tenants in common do not operate according to the rule of survivorship, which means that the share of each party can be passed on to his next of kin according to the laws of inheritance.

This is usually the better option where there are multiple children to be considered ? particularly if the property can be divided into multiple units for the children's families to inhabit.

The final option, reserving a life interest in the property while gifting a remainder interest to the Grantee, is best suited to a Grantor who wishes to maintain greater control over the property.

A life interest allows him to collect rent and gives him authority to control who resides at the property during his lifetime. When the Grantor dies, the Grantee automatically owns the property outright.

Where the Grantor contemplates gifting an interest to more than one Grantee, he will have to decide whether the Grantees will hold the property as joint tenants or tenants in common.

With any of the options discussed here, it must again be remembered that the Grantor will no longer be able to deal with the property ? by mortgage, sale or lease ? without the Grantee's co-operation.

For this reason, it is imperative that legal advice be sought before one gives an interest in property to another. This will ensure that the wishes and expectations of the Grantor are met.