Under the new strata laws, can a “dissenting owner” recover GST on a forced sale?
Written by Leisha de Aboitiz and Ole Mitrevski on March 2, 2016
If GST is payable on the sale of a strata lot, can a dissenting owner recover GST in respect of the sale of its lot having regard to Part 10 of the Strata Schemes Development Bill 2015?
The short answer is yes, GST will most likely be recoverable as part of the “compensation value” received by a dissenting owner.
Who is a “dissenting owner”?
A dissenting owner is an owner of a lot which does not support a strata renewal plan prepared in accordance with Part 10 of the Strata Schemes Development Bill 2015.
What is the “compensation value”?
The “compensation value” is the value of a lot determined:
- pursuant to s55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Acquisition Act) subject to any modifications prescribed by the regulations; or
- by any different valuation method prescribed by the regulations.
The regulations are yet to be published, so it is unclear whether the regulations will specifically regulate (or modify) the manner in which the “compensation value” is calculated, and in particular whether or not GST will be recoverable by a dissenting owner as part of the market value of the dissenting lot.
However, if the “compensation value” is to be determined solely pursuant to the Acquisition Act, then it is most likely that any GST paid (or payable) on the sale of the dissenting lot would form part of the market value of that lot, meaning that a dissenting lot owner would then recover GST as part of the overall value it receives.
Is a dissenting owner entitled to “compensation value” for its lot?
Yes, at a minimum.
When making an order to effect to a strata renewal plan, a court must be satisfied in relation to the compensation being received by lot owners that:
- in the event of the sale of the entire strata scheme (a “collective sale”), each lot owner must receive not less than the “compensation value”; and
- in the event of a “redevelopment”, the amount to be paid to a dissenting owner must be the greater of the “compensation value” of the dissenting owner’s lot and the amount which the dissenting owner would have been entitled to had they supported the strata renewal plan.
For further information, please contact Leisha de Aboitiz or Ole Mitrevski.
Insights
HoAs – binding or not binding?
Be careful when asking for a “non-refundable” deposit in a heads of agreement that has all the hallmarks of a binding contract, it might just lock you in to the deal. In this case Mr. Patel paid a non-refundable $50,000 deposit under an HoA, and when the vendor withdrew claiming the HoA was non-binding, Mr Patel sought (and was granted) specific performance. A good reminder that it’s important for your HoA to be explicitly non-binding if that is your intention.
https://pinpoint.cch.com.au/document/legauUio3697613sl1502889120/patel-v-sengun-investment-holdings-pty-ltd-2023-aplc-23-046
August 9, 2024
Finalist - Property Team of the Year
This recognition is a tribute to all of the hard work carried out by our lawyers and support staff, and also to our wonderful clients who have been a pleasure to work with, and who provide us with such rewarding transactions.
We look forward to enjoying a fun night with our peers at the LawyersWeekly Awards ceremony in August!
July 15, 2024
Guarantors Beware
Not all guarantees are created equal: understanding the risks associated with guarantees in property transactions and whether you might be forced to ‘pay the price’ for a purchaser’s non-completion.
June 18, 2024
Legal 500 (Asia Pacific) Guide 2023
Sincere thanks to our wonderful clients and hard-working team for supporting our inclusion in the Legal 500 (Asia Pacific) Guide as a leading firm in Real Estate for 2023
The Legal 500 has been analysing law firm capabilities across the world for more than 3 decades in over 150 jurisdictions. Their research is based on: “feedback from 300,000 clients worldwide, submissions from law firms and interviews with leading private practice lawyers, and a team of researchers who have unrivalled experience in the legal market.” – https://www.legal500.com/about-us/
February 10, 2023
"Excellence Awardee" - Boutique Firm of the Year - 2022 Australasian Law Awards
We are delighted that Massons has been selected as an “Excellence Awardee” in the category of “Boutique Firm of the Year” at the 2022 Australasian Law Awards.
Thank you to all of our wonderful clients who have supported our nomination in this category, and to our amazing lawyers and support staff for making this possible!
Wishing all the other Awardees the best of luck and looking forward to the Gala Dinner. A night out with our team is always cause for celebration – win, lose or draw!!
March 23, 2022
Doyle's Guide 2022
We are excited about our inclusion in Doyle’s Guide for 2022 for NSW in the following categories:
Massons – Leading Property & Real Estate Law Firms
Jodie Masson – Leading Property & Real Estate Lawyers and Leading Leasing Lawyers
Leisha de Aboitiz – Leading Property & Real Estate Lawyers and Leading Leasing Lawyers
Ben Malone – Property & Real Estate Law Rising Stars
Thank you to all of our peers and wonderful clients who have helped to achieve this recognition.
March 14, 2022
Australia's commercial property law experts