LRBA Hot Potato: figuring out who holds the property insurance
So your SMSF has embarked on the journey of purchasing a property using limited recourse borrowing, and you’re in the midst of figuring out whose name goes on what document.
The question arises: who takes out the property insurance and landlord’s protection insurance, the SMSF Trustee or the Holding Trustee?
The SMSF Trustee is entitled to take out insurances for the property as the Fund is liable under the loan and is also absolutely entitled to the benefit of the Property.
As the Fund is ultimately the party that is detrimentally affected should anything happen to the Property, the SMSF Trustee should ensure that the Fund is able to claim for any damage that might occur.
The Holding Trustee is the legal owner of the land and is entitled to insure the property against damage, and likewise for landlord insurance. Some lenders may also insist that the registered proprietor of the property holds an insurance policy for the property.
But it is important to keep in mind the nature of the arrangement between the SMSF Trustee and Holding Trustee should insurance be taken out by the Holding Trustee.
As the Holding Trustee is a bare trustee it must make sure that it does not take any action unless it is directed to do so by the Fund Trustee, who is absolutely entitled to the Property. This direction by the Fund Trustee should be done formally and in writing and confirmed by the Holding Trustee executing minutes to confirm this action.
The final answer is that both the Holding Trustee and the SMSF Trustee have an insurable interest in the land and that both are eligible to be the owner of the property insurance and landlord’s protection insurance over the property.
In both instances all amounts payable in respect of the insurance should be paid by the Fund Trustee. Obviously the Holding Trustee must hold any policy proceeds on trust for the SMSF.
From a purely administrative position it would be easier for the SMSF to hold the insurances to avoid the constant but mandatory interplay between the SMSF and its bare trustee the Holding Trustee. But the insurance company may have its own requirements as might the Fund’s Lender.
Discuss the issue with the Fund's broker and check with the Lender for any requirements. The need for this insurance should also be considered by the Fund’s accountant or financial planner.
For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.
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