Is the age of crypto here? Attwood Marshall Lawyers Property and Commercial Lawyer, Alexandra Hughes, discusses if cryptocurrency can be used as a preferred payment for purchasing property, and what obstacles we are yet to overcome before buying a property with cryptocurrency becomes common practice.
Increasingly across Australia, properties are being listed for sale with cryptocurrency noted as an accepted form of payment. Cryptocurrencies have been on the rise over the past 10 years, with many people buying different ‘coins’ (virtual currencies), with hopes that the value of the coins will increase over time. Popular cryptocurrencies include Bitcoin, Ethereum, Cardano and Stellar, however there are hundreds available to purchase, all with varying values and stability.
There are new virtual currencies developing regularly, nevertheless, at present, the Reserve Bank of Australia (RBA) does not recognise any cryptocurrencies as a form of legal tender.
Can a property sale proceed to settlement with payment to the seller being made in the form of cryptocurrency?
In 2019, Australia’s first live property auction requesting cryptocurrency as consideration was held for a home in Casuarina, New South Wales. The property situated at 1 Beech Road, Casuarina, was passed in at auction, and a search of the land ownership records show that ownership of the property had not changed hands until February 2021, wherein the sale price is listed as $3.75 million. It appears from the records that the purchaser paid in Australian Dollars, as opposed to the vendor’s preference of cryptocurrency.
Over the past few years, many properties have been marketed for sale with the seller’s payment preference listed as cryptocurrency. There does not however, appear to be any reports of settlements being successfully completed with payment made in cryptocurrency. This may be due to the fact that a vendor and purchaser both face many obstacles in order to effectively complete settlement by payment in cryptocurrency.
Fluctuation and risk
A major consideration for the vendor when determining whether they want to accept cryptocurrency as payment for their property is the volatile nature of cryptocurrencies and the real possibility that the value of the currency on signing of the Contract may be quite different to the value on settlement date. Values can skyrocket overnight and they can also come crashing down. Vendors do not want to find themselves in the position wherein an agreed upon amount of cryptocurrency at the time of signing the Contract is worth considerably less 30+ days later on settlement.
Similarily, a purchaser does not want to realise on the morning of settlement that the value of the chosen cryptocurrency has increased substiantially, and they no longer have sufficient coins to purchase the property, resulting in a possible breach of Contract issue if they are unable to complete settlement as required.
There are not sufficient conditions in the standard form Contracts utilised for regular sales to appropriately protect both the vendor and purchaser as well as deal with the unusual circumstances of accepting cryptocurrency as consideration for a property sale.
As such, it is imperitive that should a vendor be considering selling their property for cryptocurrency, they engage a suitably qualified property lawyer to draft a Contract of Sale to suit their unique situation. The vendor and purchaser should further obtain advice from a qualified financial advisor regarding capital gains and any other tax implications relating to the transaction.
Banks will not currently accept cryptocurrency
In the event that there are financiers involved, for example, either the vendor has a mortgage or the buyer is relying on finance from a bank to secure a property, it is unlikely that the transaction would be able to proceed with cryptocurrency being paid on settlement. Unfortunately, banks will not accept their mortgages to be paid out in cryptocurrency, nor will they advance funds for a purchase in cryptocurrency.
If financiers are involved in the deal, which is the case in most property transactions, the parties will have to stick with Australian Dollars for all payments.
Additionally, solicitor or real estate agent trust accounts are not equipped to hold a deposit in cryptocurrency. To proceed with a property transaction in cryptocurrency, the seller would either have to forego the security of the purchaser paying down a deposit, or alternatively, a deposit would need to be paid in Australian Dollars to the solicitor or real estate agent’s trust account, then refunded to the purchaser upon successful settlement and completion of the transaction.
Other things to consider
When considering purchasing a property with cryptocurrency, a purchaser will have to be aware that The Office of State Revenue only accepts payment in Australian Dollars for Transfer Duty, and the Land Registry Office only accepts payment in Australian Dollars for Transfer Fees. As such, the purchaser will require available funds to pay their Stamp Duty, Transfer Fees and other incidentals in Australian Dollars.
Transfer Duty is paid either on the Contract price, or the market value of the property at the time of the sale. In the case of cryptocurrency payments, it is likely that Transfer Duty would be paid on the market value of the property.
Albeit a glamourous and exciting attraction, selling or purchasing property with cryptocurrency will likely result in additional costs, extra paperwork and a trickier transaction for all parties involved. While most argue that cryptocurrency is ‘the future’, and although it may be possible to effect a property settlement with payment in cryptocurrency, it may be best to wait until cryptocurrency is recognised as a form of legal tender, and proper systems have been implemented for cryptocurrency to be paid as consideration for a property sale before you attempt one.
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