Register For Our Mailing List

Register to receive our free weekly newsletter including editorials.

Home / 52

Six property potholes for SMSFs to avoid

I’m always concerned when I see advertisements such as, ‘Convert your Super to a Self Managed Fund and pay off your home in as quick as 10 years.’ In my 28 years at the Australian Taxation Office (ATO), I saw many people caught up in these schemes, especially when in financial difficulties.

To give you an idea on how to avoid some of these dodgy schemes, here are six things that you should always consider if you are entering into property investments using your SMSF.

1.  Does your SMSF’s trust deed allow for property investments?  There are two main sources that provide details of what you, as trustee of your SMSF, can and cannot do.  One is your SMSF’s trust deed and the other is  the Superannuation Industry (Supervision) Act 1993 (SISA). An SMSF trustee is not able to undertake actions, regardless of whether it may be permitted by the superannuation law, if it is not also permitted by the SMSF’s trust deed. If your SMSF needs to borrow money to purchase a property, you must ensure your SMSF’s trust deed allows for security to be placed over its assets and allows for a separate trust to hold the asset while the loan remains outstanding.

2.  Is property part of your SMSF’s investment strategy?  There is nothing in the SISA that requires an investment strategy to be in writing. However, SMSF trustees are solely responsible and accountable for the prudential management of their members’ benefits. It is the trustees’ duty to make, implement and document decisions about investing in assets and to carefully monitor the performance of those assets. Also the SISA provides a defence to trustees against any action for loss or damage suffered as a result of them making an investment. The defence is available if trustees can show that the investment was made in accordance with the investment strategy formulated for their SMSF. I recommend that your SMSF investment strategy is documented.

3.  Who is the owner of the property prior to the property being acquired by your SMSF?  Under the SISA, only properties that meet the definition of a ‘Business Real Property’ (BRP) can be acquired by an SMSF from related parties. A BRP is any land and building used wholly and exclusively in a business. It can be residential property as long as the property is used in a business at the time the SMSF acquired it from a related party. Examples of BRP, can be found in the ATO’s publication SMSF Ruling 2009/1. You cannot use your SMSF’s money to purchase the residential property that you live in unless the property value does not exceed 5% of the total assets value of your SMSF. For most people, their SMSF is not worth enough to meet this requirement.

4.  Does the purchase reflect market value? The SISA states that all investment transactions must be conducted at arm’s length. Of course if the parties (i.e. the SMSF and the property owner) are related then they are not arm’s length. ‘ However, the SISA allows sales of BRP between related parties by stating that if the parties are not at arm’s length then they must act as though they are or on terms that do not disadvantage the SMSF. Therefore, the purchase price paid on properties should always reflect the true market value regardless of who the buyers and sellers are.

5.  Has the SMSF accumulated enough money to purchase the property outright or would it need to borrow?  If your SMSF needs to borrow to purchase the property, then the borrowings must be structured correctly in accordance with the requirements of a “Limited Recourse Borrowing  Arrangement” (LRBA) under the SISA.

If borrowing is required, it needs to be structured correctly, follow the correct process, have the correct wording on the loan document, and ensure the correct names are on the purchase and loan documents. A separate holding trust should be established by a qualified legal practitioner. Failure to properly execute a holding trust arrangement may lead to unnecessary stamp duty and/or capital gains tax implications. I recommend appropriate legal advice is obtained prior to any part of the purchase taking place. Also for more details on the application of the LRBA, refer to the ATO publication SMSF Ruling 2012/1.

6.  Once the property is acquired by your SMSF, who is it going to be leased to? The SISA prevents properties that do not meet the definition of a BRP to be leased to related parties unless the property value does not exceed 5% of the SMSF’s total asset value. So unless your SMSF has substantial wealth, beware of any claim that you can use your SMSF to pay off your mortgage. It cannot be done.

If everything is done correctly and in accordance with the superannuation law, property may be a good investment for SMSFs. If things are done incorrectly, not only can your SMSF be penalised by the ATO, it may end up paying three times the stamp duty as well as incur additional capital gains tax.

 

Monica Rule worked for the Australian Taxation Office for 28 years and is the author of ‘The Self Managed Superannuation Handbook – Superannuation Law for Self Managed Superannuation Fund in Plain English’. She now runs her own business focussed on SMSF and superannuation education and consulting.

 

10 Comments
Amanda McDermott
January 21, 2018

Thanks so much Monica, All the banks that I have spoken to so far, won't lend because the land doesn't generate income, despite the fact my 9.5% employer contributions will more than pay the loan installments each month.
They don't even want to know my details to proceed any further.
This led me to look up the following;

From the Superannuation Industry (Supervisory) Act 1993
https://www.legislation.gov.au/Details/C2017C00052
Division 2—Interpretation
10 Definitions
invest means:
(a) apply assets in any way; or
(b) make a contract;
for the purpose of gaining interest, income, profit or gain.
..
The way i read that is gain is a gradual appreciation of the asset (land in this case).
I haven't given up though. I'll keep searching for finance. Thanks again for replying!

Monica Rule
January 19, 2018

Hi Amanda,

An SMSF is able to borrow under a "limited recourse borrowing arrangement" (LRBA) to acquire a single acquirable asset such as vacant land purchased from an unrelated land owner. The lender can be anyone as long as the terms of the loan are at arm's length.

You may wish to view the following ATO publications (ATOID 2010/162, PCG 2016/5, TD 2016/6) to understand what is meant by the terms arm's length in relation to LRBAs.

I hope this helps.

Amanda McDermott
January 18, 2018

Hi Monica
I have set up a single member SMSF and want to borrow 35% of the value of the vacant land and use my regular 9.5% contributions to repay the loan (more than enough). Is this possible? FYI I have no intention to do anything to the land until I retire in 30 years time.

Graham Hand
July 20, 2015

Debbie, see Monica's article: http://cuffelinks.com.au/smsfs-house-land-packages/. Do you mean your super fund will put in 40% and you will personally put in the other 60%? Is that the question?

Debbie
July 20, 2015

I'm in the process of establishing my SMSF as a single member. I want to know if I can buy a house and land package with my super fund if I'm to borrow about 60-65% from the bank? Any advice would be greatly appreciated. Thank you.

Monica Rule
January 30, 2015

Oscar, you can only make an in-specie contribution (i.e. transferring land you own) to your SMSF if the land is used wholly and exclusively in your business. For example, you are a property developer and land is used in your business. Also, you cannot borrow under a limited recourse borrowing arrangement to develop, renovate, or improve a property already owned by an SMSF.

Oscar
January 30, 2015

I wish to make a voluntary contribution to my smsf for 2 vacant blocks of residential land, both of which i own outright. Can i do this with a view to borrow (LRBA) to build on them individually?

Peter Rusbourne
March 13, 2014

This list is a great way to assess any proposed transaction. In my experience I would also add to the list:

11 If the SMSF has more than one member and the Vendor is one member, does the SMSF documents reflect the benefit being to the Vendor member?

12 Are your documents acceptable to your lender? Each lender has different requirements that change from time to time.

Greg Einfeld
March 13, 2014

This is a good checklist of things to consider. I would add a few more:

7. Is anyone recommending a property and if so, what conflicts of interest might be influencing their recommendation?

8. Do you have your documentation in order, including getting the name of the right entities on the right legal documents, with the right entities being established in the right order.

9. Are you planning to improve or renovate the property? If so, you should ensure your strategy is compliant before entering into a contract.

10. Do you have enough liquidity to get you through an unforeseen situation? Such as a vacant property, loss of income (and contributions), or death of one of the members of the fund.

What other points would you add to the list?

Monica Rule
March 07, 2014

'You cannot use your SMSF’s money to purchase the residential property that you live in unless the property value does not exceed 5% of the total assets value of your SMSF.'

I should also add that the property must be leased back to the members for this to be allowed under the in-house asset rules.

 

Leave a Comment:

RELATED ARTICLES

Clime time: Asset allocation decisions for SMSFs

SMSF trustees who question their capacity and look for options

Avoid these top five errors in your SMSF annual return

banner

Most viewed in recent weeks

Australian house prices close in on world record

Sydney is set to become the world’s most expensive city for housing over the next 12 months, a new report shows. Our other major cities aren’t far behind unless there are major changes to improve housing affordability.

The case for the $3 million super tax

The Government's proposed tax has copped a lot of flack though I think it's a reasonable approach to improve the long-term sustainability of superannuation and the retirement income system. Here’s why.

Tariffs are a smokescreen to Trump's real endgame

Behind market volatility and tariff threats lies a deeper strategy. Trump’s real goal isn’t trade reform but managing America's massive debts, preserving bond market confidence, and preparing for potential QE.

The super tax and the defined benefits scandal

Australia's superannuation inequities date back to poor decisions made by Parliament two decades ago. If super for the wealthy needs resetting, so too does the defined benefits schemes for our public servants.

Meg on SMSFs: Withdrawing assets ahead of the $3m super tax

The super tax has caused an almighty scuffle, but for SMSFs impacted by the proposed tax, a big question remains: what should they do now? Here are ideas for those wanting to withdraw money from their SMSF.

Getting rich vs staying rich

Strategies to get rich versus stay rich are markedly different. Here is a look at the five main ways to get rich, including through work, business, investing and luck, as well as those that preserve wealth.

Latest Updates

SMSF strategies

Meg on SMSFs: Withdrawing assets ahead of the $3m super tax

The super tax has caused an almighty scuffle, but for SMSFs impacted by the proposed tax, a big question remains: what should they do now? Here are ideas for those wanting to withdraw money from their SMSF.

Superannuation

The huge cost of super tax concessions

The current net annual cost of superannuation tax subsidies is around $40 billion, growing to more than $110 billion by 2060. These subsidies have always been bad policy, representing a waste of taxpayers' money.

Planning

How to avoid inheritance fights

Inspired by the papal conclave, this explores how families can avoid post-death drama through honest conversations, better planning, and trial runs - so there are no surprises when it really matters.

Superannuation

Super contribution splitting

Super contribution splitting allows couples to divide before-tax contributions to super between spouses, maximizing savings. It’s not for everyone, but in the right circumstances, it can be a smart strategy worth exploring.

Economy

Trump vs Powell: Who will blink first?

The US economy faces an unprecedented clash in leadership styles, but the President and Fed Chair could both take a lesson from the other. Not least because the fiscal and monetary authorities need to work together.

Gold

Credit cuts, rising risks, and the case for gold

Shares trade at steep valuations despite higher risks of a recession. Amid doubts that a 60/40 portfolio can still provide enough protection through times of market stress, gold's record shines bright.

Investment strategies

Buffett acolyte warns passive investors of mediocre future returns

While Chris Bloomstan doesn't have the track record of his hero, it's impressive nonetheless. And he's recently warned that today has uncanny resemblances to the 1990s tech bubble and US returns are likely to be disappointing.

Sponsors

Alliances

© 2025 Morningstar, Inc. All rights reserved.

Disclaimer
The data, research and opinions provided here are for information purposes; are not an offer to buy or sell a security; and are not warranted to be correct, complete or accurate. Morningstar, its affiliates, and third-party content providers are not responsible for any investment decisions, damages or losses resulting from, or related to, the data and analyses or their use. To the extent any content is general advice, it has been prepared for clients of Morningstar Australasia Pty Ltd (ABN: 95 090 665 544, AFSL: 240892), without reference to your financial objectives, situation or needs. For more information refer to our Financial Services Guide. You should consider the advice in light of these matters and if applicable, the relevant Product Disclosure Statement before making any decision to invest. Past performance does not necessarily indicate a financial product’s future performance. To obtain advice tailored to your situation, contact a professional financial adviser. Articles are current as at date of publication.
This website contains information and opinions provided by third parties. Inclusion of this information does not necessarily represent Morningstar’s positions, strategies or opinions and should not be considered an endorsement by Morningstar.