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About Product
The Superannuation Laws require the Trustee to use a Holding Trust to hold the legal title of any single acquirable asset under a limited recourse borrowing arrangement. Although it is generally preferred to have a corporate trustee for the trustee of the Holding Trust, it is not required under section 67A of SISA 93 (for non-bank lending).
This document pack establishes the HT and LRBA arrangement for an SMSF acquiring property through non-bank lending. If you are using a Corporate Trustee, please ensure this is established first. These can be located under the ‘Companies’ category on the LYD platform.
► $229.00 (inc GST) - OR provided under your unlimited membership
► The master document has been signed off by LY Legal and is congruent with Australian law.
General Information
The LYD LRBA Holding Trust Pack (Non-Bank) includes relevant minutes to implement and execute the Holding Trust and LRBA.
This product is for NON-BANK Lending purposes and for the acquisition of property. If the asset is not yet known, please contact support@lightyeardocs.com.au and our legal/finance team can assist with the document preparation. For BANK Lending, please use the LRBA Holding Trust Pack - Bank Lending.
If you are using a Corporate Trustee, please ensure this is established first. These can be located under the Companies category.
Benefits
- Simple and easy to use.
- Can be used for property lending with non-bank lenders.
- A bare trust only, so no significant terms and conditions.
- The absolute beneficiary of the Holding Trust is the SMSF.
- Legal title to the single acquirable asset is held by the Holding Trust on behalf of the SMSF.
- Any recourse by the Lender is against the Trustee of the Holding Trust’s property.
Frequently Asked Questions
How does it differ from the Related Party (Non-Bank) LRBA?
A related party LRBA or non-bank LRBA may use an individual trustee rather than a company to act as trustee – as required by a bank. The use of a corporate trustee requires extra cost and compliance but it is a requisite pre-condition for entering into a bank LRBA.
What Trustee should be used?
Where a bank LRBA is being used, the Lender will generally seek a company to act as the Trustee of the Holding Trust.
What happens at the end of the borrowing arrangement?
A limited recourse borrowing arrangement may be ended either by; (a) the self-managed superannuation fund paying off the loan and then collapsing the custodian trust by having the legal title to the asset transferred into its name; or (b) the custodian selling the asset and then using the sale proceeds to pay out the loan - this would occur where the self-managed superannuation fund is in default its loan obligations. Different tax consequences arise depending on how a limited recourse borrowing arrangement is ended. Please contact us at support@lightyeardocs.com.au should you require assistance.
I need assistance finding a bank that will lend to an SMSF. Can you assist?
Yes. We have access to a large panel of bank lenders and SMSF brokers with a proven history in SMSF borrowing and LRBA establishments. If you would like a referral, please contact our partner brand I Love Accounting - support@iloveaccounting.com. We strongly suggest appropriate advice documents are put in place, including an ASIC compliant Statement of Advice. I Love Accounting can also assist with this process and the construction of tailored advice documents.
How long does this document take to assemble?
Depending on the complexity of the data, this document should take approximately 10-25 secs to assemble. If you experience timing outside of this please contact Support via the Surge app, alternatively please read this article for troubleshooting tips https://info.lightyeardocs.com.au/supportcentre/troubleshooting-longer-assembly-times-timeouts .
Is this document a legal document?
All master documents have been signed off by LY Legal lawyers. Tony Anamourlis of LY Legal advises that “at no time, due to inbuilt legal protection and security measures can a user change or amend a document on the LYD platform that has been signed off by a practicing solicitor. To do so would result in the user drafting a document of a legal nature and engaging in the provision of legal services. In addition, it would be a breach of copyright. In our opinion when completing the form fields through the LYD platform, users and their employees are merely carrying out an administrative task which is not the provision of legal advice.”
However in some complex areas such as the insertion of a varied range of client instructions into a Will or other such documents the user must be mindful of the extent to which a document is being drafted by the user rather than merely the administrative task of completing a form where the relevant fields are inserted into the reviewed and signed legal document provided by LY Legal.
The above advice is born out of numerous cases dating back to Re Sanderson, Ex parte Law Institute of Victoria [1927] VLR 394, 397 where the Court held:
“if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with action usually taken by a solicitor – I think he then does act as a solicitor.”
Likewise in ACCC v Murray (2002) 121 FCR 428, 448 where Murray was building a franchise business that involved the legal writing and drafting of Wills from scratch based on the client’s personal circumstances. The Court held that this process was legal work.
Is the document easy to read?
All LYD products are written in plain English and assessed for readability. If at any time you come across any errors, please contact support@lyd.com.au.
What lawyers sign off on the LYD documents?
All LYD documents are prepared and signed off by LY Legal.
Are the LYD documents reviewed regularly?
All LYD documents form part of the LYD internal review process. We review all documents at least annually or when required to do so due to changes in legislation. Further details of this process and a review schedule is include on this website.
Can I get a sample of this document?
Yes, please email support@lyd.com.au to request a sample document for you to review.