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Unrealisable Assets - Unable or Unreasonable to Sell
Last amended: 24 March 2006
Circumstances in which a person may be unable to sell an asset would include the following:
- there is a legal restriction or court order which prevents the asset being sold,
- the asset is subject to a pending property settlement,
- the asset is located in a declared exceptional circumstances (EC) area or in an area where there has been an interim declaration, and the effect is to render the asset unsaleable while this situation continues. An exceptional circumstances area is defined by the Department of Agriculture, Fisheries and Forestry as an area affected by a rare and severe event that was not predictable or part of a process of structural adjustment, resulting in a severe downturn in farm income over a prolonged period,
- the property is occupied by an estranged or former spouse and their right of occupancy is provided by a court order or legal agreement, or
- the property is owned by the person as a joint tenant or tenant in common with another person who is not claiming consideration under the hardship rules and that person refused to give consent to the sale of the property.
Unreasonable to expect the person to sell their asset
Circumstances where it might be unreasonable to expect a person to sell their asset would include the following:
- they cannot attract a buyer at a reasonable price (an asking price of up to 10% higher than the assessed assets test value),
- the asset is a farm or some other business and there is a temporary but substantial reduction in income from the business due to factors outside the pensioner's control,
- the asset is a house occupied by a near relative and the near relative has lived in the house for at least ten years,
- the asset is a house occupied by a near relative and the near relative has previously provided care for the pensioner in the house (which was formerly the pensioner's home),
- the asset is a house occupied by a near relative and the near relative is a handicapped son or daughter and the pensioner is providing the house to promote the child's independent living, or
- the asset is a house occupied by a near relative and the near relative has dependent children and the family income of the near relative does not exceed the Family Tax Benefit income ceiling.
Special rules apply where the asset is a farm.
Long term financial hardship
A person who is experiencing long term hardship is expected to sell non-liquid assets before accessing payment under the financial hardship rules, if the proceeds from these assets, plus the value of readily available funds, exceed the allowable limit for readily available funds.
No person is expected to sell their principal home.
Examples of non-liquid assets
Assets that are considered non-liquid, and should be sold to alleviate severe financial hardship include:
- second cars,
- additional land,
- holiday homes, and
- life assurance policies.
Long term attachment to property
A person is not expected to sell property they have lived in for at least twenty years unless the land can be subdivided and the portion that contains the home can be retained.
Shorter occupancy may be accepted as long term attachment
An occupancy period of less than twenty years may be accepted if a person would, except in unforeseen circumstances:
- have continued to live on the property for an indefinite period, and
- not have sought payment of a pension.
An example of where a shorter occupancy may be accepted would be a couple that purchased a farming enterprise and five years later the husband died leaving a widow and children. It may be accepted that the widow has a long term attachment to the property.
Acceptable sale price and time
The following table shows the reasonableness test for the property sale price and the sale period.
If the sale price is
then the property is
within 10% of the assets test valuation
unable to be sold within three months
an unrealisable asset.
at least 10% higher than the assets test valuation
unable to be sold within three months, or
the person refuses an offer that is within 10% of the assets test valuation
not an unrealisable asset.
A near relative includes:
- a member of the immediate family;
- a blood relative;
- a relative by marriage; and
- an adopted child.
The principal home has the meaning given by subsection 5LA(1) of the VEA and subsection 5LA(2) of the VEA. The principal home of a person is generally the place in which they reside. In certain circumstances, however, the principal home of a person can be the place in which they formerly resided. The following property is regarded as part of the principal home.
- the residence itself (e.g. house, flat, caravan),
- permanent fixtures (e.g. stoves, built-in heaters, dish-washers, light fittings and affixed carpets),
- [glossary:curtilage:DEF/Curtilage] (i.e. two hectares or less of private land around the home where the private land use test has been satisfied, or all land held on the same title as the person's principal home where the extended land use test has been satisfied), or
- any garage, shed, tennis court or swimming pool used primarily for private purposes provided it is on the same title as the principal home.