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Other exemptions

Exemptions from transfer duty apply to various types of transactions involving particular dutiable property, or transactions under particular Acts:

Although the following transactions are exempt from duty, they must still be assessed and stamped.

Family Law Act

Eligibility

You don’t pay transfer duty on transactions that give effect to a court order or financial agreement made under sections 90, 90L or 90WA of the Family Law Act 1975 (Cwlth).

The sealed court order or financial agreement must:

  • be a valid order or agreement
  • pre-date the transaction
  • specify the property being transferred
  • clearly state who the property is to be transferred to.

Court orders must be made under the provisions of Part VIII of the Family Law Act. Financial agreements must be made under the provisions of Part VIIIA or Part VIIIAB of the Family Law Act, as applicable. An order or agreement made under another jurisdiction is not exempt under these provisions.

Example

A husband and wife who are divorcing own an investment property. Consent orders are made in the Federal Court of Australia, under Part VIII of the Family Law Act, for a property settlement between the husband and the wife.

Under the terms of the consent order, the wife transfers her share of the property to the husband’s trustee company.

The instrument (document) transferring the wife’s interest in the property to the husband’s trustee company is exempt from duty under section 90(1)(a) of the Family Law Act.

How to claim

To claim an exemption, you need to lodge:

  • your transaction documents
  • a copy of the sealed court order or financial agreement
  • a dutiable transaction statement (Form D2.2)
  • an identity details annexure for each non-Australian transferor and transferee, when transferring real property (e.g. homes, apartments, business premises and vacant land)
  • a covering letter outlining the documents you have lodged, your name and return address.

Read more about lodging and stamping documents.

Transferring an interest in property may affect the transferee’s land tax liability.

Property Law Act

Eligibility

You don’t pay transfer duty on transactions relating to de facto relationship property that gives effect to:

The recognised agreement or court order must:

  • be a valid agreement or order
  • pre-date the transaction
  • specify the property being transferred
  • clearly state who the property is to be transferred to.

The parties must have lived in a de facto relationship for at least 2 years.

Example 1

A de facto couple own a property as joint tenants and are separating.

A recognised agreement is made under section 266 of the Property Law Act that contains a statement of all significant property. The agreement is signed by the couple and witnessed by a solicitor.

The agreement states that the couple has lived together in a de facto relationship on a genuine domestic basis for 1 year and 7 months before separating, and for a further 6 months after reconciling. An instrument is executed to transfer the property from one partner to the other.

The instrument is exempt under section 424 of the Duties Act 2001 because the parties to the separation agreement have lived together as a couple for at least 2 years.

Example 2

Consider the same case of the de facto couple in example 1, except that the signed and witnessed agreement states that the couple has lived together in a de facto relationship on a genuine domestic basis for 18 months.

An instrument is executed under the agreement to transfer property from one partner to the other.

The instrument is not exempt under section 424 of the Act because the parties to the recognised agreement haven’t lived together for at least 2 years. This instrument must be assessed for transfer duty on the dutiable value of the entire property.

See section 424 of the Duties Act for more information on the exemption for de facto relationship instruments.

How to claim

To claim an exemption, you need to lodge:

  • your transaction documents
  • a copy of the recognised agreement or court order
  • a dutiable transaction statement (Form D2.2)
  • an identity details annexure for each non-Australian transferor and transferee, when transferring real property (e.g. homes, apartments, business premises and vacant land)
  • a covering letter outlining the documents you have lodged, your name and return address.

Read more about lodging and stamping documents.

Transferring an interest in property may affect the transferee’s land tax liability.

Matrimonial instrument—decree nisi

Transfer duty is exempt under section 424 of the Duties Act if:

  • a decree nisi of dissolution of marriage has become absolute
  • the property is your principal place of residence
  • the property is being transferred from your former spouse to you
  • the transfer is dated after the start of proceedings to dissolve or annul the marriage.

How to claim

To claim an exemption, you need to lodge:

Read more about lodging and stamping documents.

Transferring an interest in property to your former spouse may affect their land tax liability.

Cancelled agreements (Duties Act)

If an agreement (contract) previously assessed for transfer duty is cancelled, an exemption may apply.

The exemption applies if you paid transfer duty on the agreement and it ends because:

  • a party has breached it
  • a condition was not fulfilled
  • of frustration (circumstances beyond the parties' control)
  • the parties consent to end the agreement and there is no resale agreement.

If you apply for a reassessment of transfer duty and the exemption applies, you will receive a refund of the duty paid (unless you have other liabilities to pay).

Read about common reasons for reassessment to find out more about claiming this exemption with a reassessment and what documents you need to provide.

For more information, read:

Correcting a clerical error (Duties Act)

You may claim an exemption on a dutiable transaction to correct a clerical error if:

  • no additional consideration is paid or payable
  • the beneficial interests in the property change only to the extent necessary to correct the error
  • it’s not an error about the appropriateness of a transaction intended to achieve a particular legal result.

Clerical errors may be accidental, inaccurate descriptions (‘misdescriptions’) of:

  • a party to the transaction
  • the property
  • the interest in a property.

Party error

Some clerical errors involve an accidental misdescription of a party to the transaction.

Example

Arthur intends to transfer his property, Blackacre, to Chris. By mistake, the incorrect transferee is noted on the transfer. As a result, Arthur transfers Blackacre to Ben instead of Chris.

There are 2 ways to correct this error and both are exempt under section 152 of the Duties Act 2001.

  • Ben signs a transfer of Blackacre back to Arthur, and Arthur signs a transfer of Blackacre to Chris. Both these transfers are exempt under section 152
  • Ben signs a transfer of Blackacre to Chris. This transfer is exempt under section 152.

Property error

Some clerical errors involve a misdescription of the property.

Example

Gary intends to transfer his property, Whiteacre, to Ellen, but his solicitor notes the incorrect real property description on the transfer. As a result, Gary transfers Blackacre to Ellen instead of Whiteacre.

To correct the error, Ellen transfers Blackacre back to Gary, and Gary transfers Whiteacre to Ellen.

Altogether, 3 transfers are made:

  1. Gary transfers Blackacre to Ellen.
  2. Ellen transfers Blackacre back to Gary.
  3. Gary transfers Whiteacre to Ellen.

Gary and Ellen may claim an exemption on transfer 1 (section 152A) and transfer 2 (section 152).

Duty must be paid on transfer 3 (the intended transfer) because this was the intent of the original transfer, which was liable for duty.

If duty has previously been paid on transfer 1 and that transaction has been reassessed as exempt, the credit can be applied to transfer 3.

Interest error

Some clerical errors involve a misdescription of an interest in a property.

Example

Dan intends to transfer a 10% share of his property, Blackacre, to his wife, Betty. By mistake, the incorrect interest is noted on the transfer, resulting in Dan transferring a 1% share of Blackacre to Betty.

Dan has evidence that he clearly intended to transfer 10% of the property, and duty was paid on the basis that 10% of the property was transferred.

The transfer is a clerical error, so another transfer to correct the error would be exempt under section 152.

Non-exempt errors

Errors that are not clerical, such as a change in circumstance or when a transaction doesn’t achieve a particular result, are not exempt from duty.

Example 1

Alan decides to transfer part of his property to his wife, Barbara. Alan instructs his solicitor to transfer 50% of the property to Barbara, which is done.

Later, Alan gets advice that it would be better financially if Barbara had a 99% share of the property.

As Alan’s original intention was to transfer 50% of the property, no clerical error has occurred and the exemption doesn’t apply.

Example 2

Carl decides to transfer part of his property to his wife, Dianne. Carl instructs his solicitor to transfer 50% of the property to Dianne, which is done.

Later, Carl gets advice that it would be better financially if Dianne held the share as trustee of the family trust.

As Carl’s original intention was to transfer 50% of the property to Dianne, no clerical error has occurred and the exemption doesn’t apply.

How to claim

To claim an exemption, you need to lodge:

  • evidence that the original transfer was incorrect because of a clerical error
  • a statutory declaration from each party to the transactions establishing that
    • there has been a clerical error in a previous dutiable transaction (the defective transaction)
    • the dutiable transaction to be considered for the exemption (the correcting transaction) has been entered into to correct the clerical error
    • the correcting transaction is for the same property transferred by the defective transaction
    • no additional consideration is payable
    • any change to the beneficial interest in the property is only to the extent necessary to correct the error
  • a completed dutiable transaction statement (Form D2.2)
  • an identity details annexure for each non-Australian transferor and transferee, when transferring real property (e.g. homes, apartments, business premises and vacant land)
  • the documents for the defective and correcting transactions
  • a covering letter outlining the facts and circumstances of the error, your name, return address and a list of the documents lodged.

For more information, read:

You can also find out more about when transfer duty is reassessed.

Surrender of lease (Duties Act)

When you have a lease over land in Queensland, the lessor can grant you a new lease even when time remains on an existing lease. However, before you can enter into the new lease, you have to give up (surrender) the existing one.

You don’t pay duty on the surrender of a lease of land in Queensland if either:

  • there is no premium, fine or other consideration paid or payable for the surrender
  • any premium, fine or other consideration paid or payable for the surrender is paid by the lessor.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Mining and petroleum Acts

You don’t pay transfer duty on the initial grant of a resource authority. However, a transaction involving an existing resource authority is subject to transfer duty.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Art unions (Duties Act)

You don’t pay duty on the transfer of property to:

  • a charitable institution—if the property is to be used as a prize in an art union that the charitable institution is conducting
  • the winner of a prize in the art union.

See Division 2 of the Charitable and Non-Profit Gaming Act 1999 for more information about art unions.

Note: The charitable institution must not be a religious body.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Particular chattels (Duties Act)

You don’t pay duty on the transfer of the following chattels taken under a statutory licence, profit à prendre (i.e. a right to take something from land that someone else owns), share-farming agreement or other similar arrangement:

  • standing timber
  • gas, petroleum or mineral
  • gravel, rock, stone, sand, clay, earth or soil
  • primary produce
  • fish or livestock
  • water.

However, the granting or transfer of a profit à prendre is a dutiable transaction.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Transfer to state for public or community purpose (Duties Act)

You don’t pay duty on transfers of land to the Queensland Government for a:

Local authorities (councils) aren’t covered by this exemption.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Native title claims—Indigenous land use agreement (Duties Act)

You don’t pay duty on a transfer of, or an agreement to transfer, land under an Indigenous land use agreement (ILUA) if:

  • the transaction is an exchange for the surrender of native title rights and interests under the Native Title Act 1993 (Cwlth) for an area of land to which the ILUA relates
  • the transferee or acquirer will use the land mainly for residential or traditional purposes within 6 months of possession (start date), excluding use for a commercial purpose (e.g. selling land, leasing land or operating a business)
  • the land will be used for approved purposes for at least 12 months from the start date (duration period).

Note: We may give notice to the transferee or acquirer that we’ve extended the start date.

How to claim

To claim an exemption, you need to lodge:

  • your transaction documents
  • an identity details annexure for each non-Australian transferor and transferee, when transferring real property (e.g. homes, apartments, business premises and vacant land)
  • a native title claim statutory declaration
  • a covering letter outlining the documents you have lodged, your name and return address.

You must tell us within 28 days if the land is no longer used for exempt purposes within the duration period.

For more information, read:

South Bank Corporation Act

You don’t pay duty on certain transfers of property for which no fee or charge is payable under the South Bank Corporation Act 1989.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Aboriginal and Torres Strait Islander Land Acts

You don’t pay transfer duty on certain transactions under the Aboriginal Land Act 1991 or Torres Strait Islander Land Act 1991 (e.g. on the issue of a deed of grant in fee simple under the Torres Strait Island Land Act).

See section 131 of the Duties Act 2001 for more information.

Industrial Relations Act

You don’t pay transfer duty on the following transactions made under the Industrial Relations Act 1999:

  • vesting of property in an industrial organisation
  • transfer of dutiable property from trustees of an industrial organisation to the organisation itself.

How to claim

To claim an exemption, you need to lodge:

For more information, read:

Land Act

You don’t pay transfer duty on certain dealings under the Land Act 1994. Exempt dealings include:

  • grant in fee simple in trust of unallocated state land to be used for a community purpose
  • grant in fee simple of land comprising ongoing leases for pastoral purposes
  • transfers of certain pastoral leases.

How to claim

To claim an exemption, you need to lodge:

For more information, read: