Preparing to buy or sell

Buying or selling a farm is one of the biggest undertakings any person will make in their lifetime. Preparation is key, writes Shirley Busteed

For any seller, arriving at the decision to sell can be painstaking. There is so much emotional attachment to land in this country – especially if a property has been in the same family for generations – which can make the decision even more cumbersome.

That said, however, don’t put your farm up for sale just to feel the market. This has the potential to backfire and completely ruin your sale. Most buyers want to deal with a genuine seller who is prepared to do business. They will quickly smell a rat if the seller is wavering and isn’t serious about selling. These guys may rapidly lose interest and move on to the next property.

If you haven’t fully made up your mind about selling, take another six to 12 months to come to a permanent decision. But once the decision is made, act in time. Go to your chosen selling agent at least six months in advance of your proposed selling campaign. Discuss all details – land registry maps, surveying, brochure, fees, auction or private treaty, advertising, when to go to the market, guide price, etc. The selling agent will guide you through the whole process.

Use whatever contacts you have to gather as much information as possible

However, once the schedule is set, give it your all. Don’t cut corners. Start preparing well in advance of the launch date and think about presentation. Remember, you don’t get a second chance to make a first impression.

Cut back hedges and ditches in fields and laneways, hang any gates and posts that are falling over, fix any burst water pipes, brush the moss and weeds off yards, top the land for thistles and nettles, trim back overgrowth on old buildings to reveal any nice stone features, clean out open drains to allow land to dry out, clean out (or even powerwash) loose-bedded sheds and, if really necessary, paint the front of the house and whitewash walls in the courtyard.

Depending on the status of the house, ensure the residence is junk-free, smell free, tidy, relatively clean and, if possible, warm and bright, when people come to view the house. All this will cost a couple of thousand euros, but it could be the difference in finding a buyer and, more importantly, getting the asking price.

There is no hard and fast formula as to when to go to the open market. In many situations, the weather can be the determining factor. If the spring is particularly wet, it could affect the presentation of the farm, especially if the land is heavy and holds the water. However, for a buyer, the wet weather may not necessarily be such a bad thing as it shows the true nature of the land quality.

The spring selling season generally kicks off in March and can run through to the end of June.

The autumn season starts in September and begins to quieten towards the end of November. There is nothing to suggest that prices are higher in the spring or vice versa in the autumn.

Once the “For Sale” signs are erected and the property appears in the paper, be prepared for anyone.

People will dare to walk your property without an appointment, especially if they get the maps and brochure from the selling agent. This period can be intense and stressful for the vendor and their family. It is best to leave all the viewings and queries to the agent.

Buyers

Most auction campaigns are relatively short – between four to six weeks – which doesn’t give buyers a lot of time to organise finance. If you need to borrow for land purchase, act in time. This could mean talking to your bank and your accountant well before the land ever appears in the paper. Remember, you will need approval before the auction date and, in many cases, this could take months, never mind weeks.

When the property is officially offered for sale, ring the selling agent for a brochure and map. Make an appointment to walk the farm. Walk it a second time if you need to. Get a feel for the property. Is it really what you are looking for? Bring someone along to get a second opinion. If the house forms a major part of the sale and requires investment, it might be prudent to get it professionally surveyed.

If you are not familiar with the area, it is worth trying to delve into the history of the property. Use whatever contacts you have to gather as much information as possible. What is the reason for selling? Are the neighbours easy to get along with? Are there any access issues, ancient burial sites, quarries, bog holes?

The conditions of sale (referred to below) will outline all the details regarding title, rights of way, turbury rights, wayleaves, vacant possession, entitlements, crops, etc. Get a copy from the seller’s solicitor and ask your own solicitor to read it – sometimes it can be difficult to follow the legal jargon on these documents.

It’s imperative to find out if it’s a genuine sale. Is the seller a willing seller? Is there goodwill with the sale? You don’t want to find yourself in the middle of a family dispute. If you are about to spend hundreds of thousands of euros on a property, you will want the operation to prosper for you thereafter.

Goodwill

Where there is no goodwill, it may not be wise to proceed with the purchase.

It is easy to get carried away at auction, especially if the bidding is brisk.

Once you know how much you can borrow, stick to your budget, plus a small contingency, if required. But if the property is excessively exceeding your budget, let it off.

Don’t put yourself and your family into a financial situation that might generate stress and worry. There will always be land for sale – another field will arrive on the market. Let circumstances dictate your buying ability, not your head.

Don't forget

Finally, don’t forget to bring your bank draft or cheque book with you to the auction – that’s if you have decided to bid yourself.

You could hire an experienced solicitor or agent to act on your behalf. A 10% deposit (non-refundable) will be required on the day. The balance is then paid at close of sale which is generally four to six weeks later.

The law

Aisling Meehan looks at the legalities around the purchase of land

Land is generally purchased in one of two ways: auction or private treaty. There are a number of things that buyers and sellers need to be aware of with either options and these are listed here as basic information.

When property is sold by auction, a contract comes into being when “the hammer falls”. The buyer has to sign the contract at this point and pay over a deposit, generally 10% of the purchase price which is generally non-refundable. The buyer is obliged to complete the purchase, usually within four weeks of the date of the contract.

There are a number of matters which a prospective buyer should address in advance of the auction.

  • Obtain a copy of the contract and have his/her solicitor check the special conditions and also review the title documents to ensure there is good title to the property.
  • Inspect the property pre-auction and engage an engineer/surveyor to check that what is being sold, according to the map/sales brochure, corresponds with what is on the ground as there is generally no comeback once the contract is signed; the property is sold as is.
  • Obtain loan approval from a bank or other lending institution before the auction if you need to borrow to pay for the purchase.
  • Carry out planning searches to see if the land is subject to any planning decisions and whether it is in a special area of conservation, flood plain, whether there are national monuments on it, etc.
  • In a private treaty sale, the payment of an initial “booking deposit” neither obliges nor entitles the buyer to complete the purchase, nor does it impose any such obligations on the seller.

    The seller, in other words, remains free to sell to somebody else until the contract has been signed.

    However, the legal process around this has changed since 1 January 2019 and there is now a new form of contract for sale issued by the Law Society of Ireland.

    Under this new system, the investigation of title and most queries (through replies to requisitions) will be raised before the contract is entered into. This should speed up the sale/purchase process and better facilitate transactions involving banks.

    Banks and loans

    If money is being borrowed to fund the purchase, the banks appoint their own solicitors to ensure that they get good title in the event that they have to sell the property to recover the loan. The completion documents are normally sent to the bank’s solicitor who checks that they have everything before the loan is drawn down.

    The borrower generally also has to assign a mortgage protection policy and have the bank’s interest noted on the insurance before the funds can be drawn down.

    If money is being borrowed to fund the purchase, the banks appoint their own solicitors to ensure that they get good title in the event that they have to sell the property to recover the loan

    The bank’s solicitor normally stamps the deed of transfer and registers the bank’s charge on the property in the Land Registry. The borrower has to pay the cost of his own solicitor and normally the cost of the bank’s solicitor.

    The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors, does not accept responsibility for errors or omissions howsoever arising. E-mail ameehan@farmersjournal.ie

    Tax facts

    Declan McEvoy outlines key points farmers should consider when buying and selling land

    While relatively little agricultural land comes up for sale in Ireland, for those who are selling, a basic knowledge of the tax considerations involved is essential. In 2017, 32,990ac of agricultural land were sold in Ireland for a total value of €161.1m, according to the CSO. When planning to purchase agricultural land, it is important to seek appropriate professional advice and take all related costs into account. These will include stamp duty, transaction fees and VAT. If you are borrowing to fund your purchase, only the interest on your loan is allowed as a tax deduction. Questions to discuss with your accountant include whether it is better to buy the land in your own name or to purchase it using a company structure.

    Stamp duty

    When buying non-residential property, including agricultural property, stamp duty must be paid. However, this cost can be reduced if you qualify for certain stamp duty reliefs.

  • Consanguinity relief: this is a stamp duty relief that applies to certain land transfers. When the relief applies, the rate of stamp duty is 1% instead of the normal 6%. To qualify for the relief, you and the person who transfers the land to you must be related persons.
  • Farm consolidation relief: this reduces the stamp duty to 1% (instead of the general rate of 6%) on transactions that qualify for a farm restructuring certificate and satisfy certain other conditions. This relief applies to transfers of agricultural land executed on or after 1 January 2018 and on or before 31 December 2020. Farm consolidation relief can be clawed back if the land is disposed of within five years of the date the claim for relief was made.
  • Transaction fees

    As well as stamp duty, you will incur legal and Land Registry fees when purchasing land. These will need to be factored into your budget.

    VAT

    VAT on property is a tricky area and one where obtaining professional advice is vital. You will need to establish the VAT history of the property to identify and resolve any potential issues that could lead to unexpected costs if not addressed.

    Another general point to note is that your ability to recover VAT when acquiring property depends on the extent to which the property will be used for VATable activities.

    Selling land

    Capital Gains Tax (CGT) at 33% is chargeable on the sale of land in Ireland, including farmland. However, farmers selling land may be able to reduce their CGT bill if they qualify for certain reliefs.

    Farm restructuring relief

    You may be able to claim CGT relief if you buy and sell land to make your farm more efficient. To qualify for this farm restructuring relief, the first sale or purchase must take place before 31 December 2019 and the second transaction must occur within the next 24 months.

    Farm consolidation relief

    A reduced stamp duty rate (1% rather than the general rate of 6%) applies to farm consolidation where you sell and buy other land to consolidate your holding. Once the relevant conditions for consolidation are satisfied, stamp duty will only be payable to the extent that the value of the land that is purchased exceeds the value of the land that is sold. The stamp duty rate is 1%.

    Retirement relief

    If you are aged between 55 and 66 and sell your business or farmland to someone other than your child, you may qualify for retirement relief. This provides full relief from CGT on the sale proceeds if the market value at the time of disposal does not exceed €750,000. If you are over 66, the threshold is reduced to €500,000.

    The threshold is a lifetime limit. If you exceed the threshold, Revenue will withdraw relief given on earlier disposals. Where the sale value exceeds the retirement relief threshold, marginal relief will apply. This limits the CGT to half the difference between the market value and the threshold.

    You may also be entitled to retirement relief where you transfer land to your child. For the purpose of this relief, “child” can include a child of your deceased child, a niece or nephew who has worked full-time on the farm for at least five years, or a foster child who you have maintained for at least five years.

    For family transfers such as these, you can claim full relief if you are aged 55-65 but the relief is restricted to €3m if you are 66 years old or older.

    Beware of transferring land to joint names if either party is aged over 55 as this can affect the CGT threshold that will apply for retirement relief purposes.

    Entrepreneur relief

    If you make/made gains when disposing of business assets, you may qualify for entrepreneur relief which reduces the CGT rate to 10% instead of the normal rate of 33%. There is a lifetime limit of €1m on the gains that you can claim relief on for this tax measure.

    Capital acquisitions tax

    When transferring assets to the next generation, capital acquisitions tax is another important consideration. Your child can receive gifts and inheritances of up to €320,000 from you before having to pay CAT. However, the balance of any gift or inheritance is then liable for CAT at 33%.

    Two reliefs that can reduce or eliminate your child’s CAT liability are agricultural relief and business relief

    Agricultural relief

    This relief reduces the taxable value of agricultural property for CAT purposes by 90%. To qualify, your son or daughter must either lease the property to someone who farms it on a commercial basis for at least six years or farm the property themselves on a commercial basis for at least six years.

    If they choose to farm the land themselves, they will need to have an appropriate agricultural qualification and must farm for at least 50% of their normal working hours. In addition, the value of the agricultural property must make up 80% of their total property value on the valuation date – ie the date on which the market value of a gift or inheritance is established.

    Your accountant will explain the options and how best to structure transactions to minimise your tax liability

    The market value is the best price the property would achieve if sold on the open market. Agricultural relief can be clawed back if your son or daughter ceases to fulfil the relevant conditions.

    Business relief

    If your child does not qualify for agricultural relief, they may be able to claim business relief. This also reduces the taxable value of relevant property by 90%. The business must have operated for profit for a minimum period of time before the gift or inheritance and your child must retain ownership for a minimum period after the date of the gift or inheritance.

    As with agricultural relief, business relief can be clawed back if your child ceases to fulfil the relevant conditions.

    Plan ahead

    The reliefs outlined in this article can be lost or clawed back in certain circumstances and the consequences of this are potentially costly.

    As is always the case in tax matters, it is advisable to seek advice well in advance of any sale or purchase.

    Your accountant will explain the options and how best to structure transactions to minimise your tax liability.

    Read more

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