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What is a voluntary transfer?
A voluntary transfer is the transfer of property from one person to another for no consideration or for consideration below market value. It is most commonly used within families, for example where a parent transfers the family home or a site to a son or daughter or where siblings reorganise ownership of inherited land. Legally it is a gift, and it carries tax consequences for the person receiving the property. The transfer is effected by a deed and, once stamped, is registered with Tailte Éireann. Tormeys Solicitors advise on voluntary transfers for families across Athlone and Co. Westmeath but all over the country.
When families in Westmeath use a voluntary transfer
Transferring a site to a child. A parent transfers a site from a larger holding, so that a son or daughter can build. This is a familiar arrangement in the farming communiyy around Glasson, Ballymore, Moate and Clonown. It requires a Land Registry compliant map, confirmation that planning permission has been or can be obtained and careful attention to rights of way and services.
Transferring the family home. A parent transfers the family home to a child, often while retaining a right of residence. The right of residence must be properly documented and registered as a burden on the folio.
Transferring a farm. Agricultural land is transferred to the next generation, frequently with specific reliefs in play. Timing matters considerably.
Reorganising ownership between siblings. Where property has been inherited jointly, one sibling buys out or is gifted the interest of the others.
Adding or removing a spouse from title. Frequently arises on marriage, on separation or where a property was purchased before a relationship began.
Each of these has a different tax profile and each requires the person receiving the property to take advice that is independent of the person giving it.
A voluntary transfer arises in circumstances where one party wishes to transfer a property to another as a gift. The legal document transferring the property is called the Deed of Transfer. It is important that both parties involved in the transfer be independently represented by different solicitors in order to ensure that both sides are protected from any claim of duress or undue influence.
You may only transfer property voluntarily if you are solvent. Therefore, you will be required to execute a Declaration of Solvency confirming that you are capable of satisfying your debts as they fall due. If the property you are transferring is mortgaged, then the written consent of the bank to the transfer will be obtained. If the property you are transferring is a site, then it may be necessary to have a map marked to indicate the part of the folio being transferred. In this case, once the Deed of Transfer has been registered, a new folio number will be assigned to the site.
As either a donor or donee, we will guide you through the process in a timely manner and advise you on the stamp duty, capital acquisitions tax (gift tax) and capital gains tax implications of the transactions. We will liaise with your financial advisor, accountant and/or auctioneer to minimise the tax liabilities
Tax and independent legal advice
The person receiving property under a voluntary transfer may have a liability to Capital Acquisitions Tax. The amount depends on the relationship between the parties, the market value of the property at the valuation date and the extent to which the recipient has already used their tax-free threshold. Thresholds, rates and reliefs are set by Revenue and are published on the Revenue gifts and inheritance pages. Stamp duty is separately payable by the person receiving the property, at rates set by Revenue.
The person giving the property may have a liability to Capital Gains Tax, calculated by reference to the market value of the property rather than the sum actually received. In many family transfers, reliefs are available. Whether they apply is a question of fact and timing.
We will advise you on the legal process and the documentation. We do not provide tax advice, and we will tell you clearly when you need to speak to an accountant or a tax adviser before proceeding. Proceeding without that advice is how families create liabilities that were entirely avoidable.
Independent legal advice is required. The person receiving the property must be advised by a solicitor who does not act for the person giving it. Where an older person is transferring their home or their land, the solicitor must also be satisfied that they understand the transaction and are acting free of undue influence. This is a very logical protection for both parties. We will explain who needs separate representation at our first meeting.
Frequently asked questions about voluntary transfers
What is the difference between a voluntary transfer and a sale?
A sale is a transfer for market value between parties dealing at arm’s length. A voluntary transfer is a transfer for no consideration or for less than market value, almost always between family members. The conveyancing steps are similar, but a voluntary transfer requires an assessment of the tax position of both parties and requires the recipient to take independent legal advice. Our team on Castle Street in Athlone deals with both, and we will tell you at the outset which category your transaction falls into.
Do both parties need separate solicitors?
Yes in almost every case. The person receiving the property must be independently advised and where an older person is transferring their home or land, the solicitor acting for them must be satisfied that the transaction is understood and freely entered into. A solicitor cannot act for both sides where their interests may diverge. This is a requirement of professional conduct rules, not a commercial preference. We will confirm the position at the first meeting and identify what is needed.
Is tax payable on a family transfer?
Potentially, on both sides. The person receiving the property may owe Capital Acquisitions Tax if the market value exceeds the tax-free threshold applying to their relationship with the person giving it. Stamp duty is also payable by the recipient. The person giving the property may owe Capital Gains Tax calculated on market value. Reliefs and exemptions exist, and their availability depends on facts and timing. Revenue publishes the current thresholds and rates. We recommend taking advice from an accountant before you commit.
Can I transfer my house and continue to live in it?
Yes, you can and it is very common. A right of residence and often a right of maintenance and support, can be reserved to the person transferring the property. The right must be set out in the deed and registered as a burden on the folio so that it binds any future owner. This has consequences for the value of the gift, for the tax position and for the ability of the recipient to sell or mortgage the property. It should never be arranged informally. We draft and register the right correctly.
How long does a voluntary transfer take?
Where title is registered and no site map or planning issue arises, a straightforward voluntary transfer can be completed within a small number of weeks. Where a site is being carved out of a larger holding, a Land Registry compliant map must be prepared by an engineer, and planning matters may need to be resolved first, which extends the timeframe considerably. Registration with Tailte Éireann after completion takes further weeks. We give a realistic estimate once we have seen the title.
People Also Ask
What is a Declaration of Solvency and why is it required?
Switching typically takes a similar timeframe to a remortgage, generally a matter of weeks once your new lender has issued a loan offer. The timing depends on how quickly title and planning matters can be confirmed, part of the conveyancing process we describe on our conveyancing and property law page.
Does a voluntary transfer affect an existing mortgage on the property?
Yes, if the property is mortgaged, the bank’s written consent to the transfer is required before it can proceed. This is arranged as part of the process alongside the Declaration of Solvency and we explain what dealing with a lender involves on our mortgages page.
Is stamp duty payable on a gifted property?
Yes, stamp duty is generally payable on a voluntary transfer, calculated on the market value of the property rather than any price paid and Capital Acquisitions Tax may also apply depending on the relationship between the parties. The stamp duty works much as it does on a purchase, which we cover on our purchasing a property page.
Can I transfer just part of my site to a family member?
Yes, this is common and it requires a map marked to show the exact part of the property folio being transferred. Once the Deed of Transfer is registered, a new folio number is assigned to that site, a process similar to the site and land transactions we describe on our commercial property page.
Does transferring a property to a child affect a future sale by them?
The child becomes the registered owner and can sell the property in the normal way once they hold it. Where the property was unregistered before the transfer, it usually needs to be registered as part of the process, which can simplify any later sale, as we explain on our selling a property page.
Voluntary transfers across Athlone and the Midlands
Tormeys Solicitors advise families on lifetime property transfers throughout Athlone town and across the farming country of south Westmeath, in Glasson and along the Lough Ree shore, at Ballymore, Moate, Kilbeggan and Mullingar, and out through Clonown and Baylin. We act frequently on site transfers from a home farm to the next generation, and on transfers of houses on the Roscommon side of the Shannon at Monksland and Bellanamullia.
Appointments are available at our Castle Street office beside Athlone Castle.
Business name: Tormeys Solicitors LLP
Address: Castle Street, Athlone, Co. Westmeath, N37 D960
Phone: +353 (0) 90 6493456
Email: info@tormeys.ie
Speak to our property team
Contact the Conveyancing and Probate team at Tormeys Solicitors about a transfer within your family. We will explain what is involved, tell you who needs separate advice and confirm our fees in writing before any work begins.
No obligation. Clear advice on the legal steps and on where you will need an accountant.
Contact our Conveyancing and Property Law team today
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