Eligible purchasers/transferees

An eligible purchaser (first home buyer) means a person who at the liability date:

• is an individual
• an Australian citizen or permanent resident
• is at least 18 years of age (the Chief Commissioner may waive this requirement upon application. Contact Revenue NSW for more information)
• has not, or whose spouse has not, at any time, owned (either solely or with someone else) residential land in Australia other than property owned solely as trustee or executor
• received a first home buyer exemption or concession under the Duties Act 1997.

If the first home buyer’s spouse has previously owned a home in Australia or received a benefit under the First Home Buyers Assistance Scheme, the first home buyer will not be eligible for benefits regardless of whether the spouse is a party to the contract.

Additional purchaser criteria

• For agreements or transfers where there is more than one purchaser/transferee, at least one purchaser/transferee must be an Australian citizen or permanent resident.
• If a transaction includes both eligible purchasers/transferees (first home buyers) and equity partners (non-first homebuyers), the eligible purchasers must be acquiring at least a 50% share in the ownership of the property. This guide provides further details in Chapter 5 –Shared Equity Arrangements.

Ineligible purchasers/transferees

Companies, partnerships, and persons in their capacity as trustees, are not eligible.

However, a trustee may be eligible if:

• The trustee is the guardian of a person under a legal disability and the person under a legal disability is a first home owner who will be occupying the home. For more information see section 76 Duties Act 1997
• The trustee is an apparent purchaser and the real purchaser is a first home owner. For more information see section 55 of Duties Act 1997
• The beneficiary has not at any time owned (either solely or with someone else) residential land in Australia other than property owned solely as trustee.

Definition of a spouse

Under Section 71 (4) Duties Act 1997, a person is the spouse of another person if they are legally married, or they are living together as a couple in a de facto relationship.

The definition of de facto relationship under the Duties Act 1997 has the same meaning as in the Family Law Act 1975 of the Commonwealth.

Note. There is no minimum period of cohabitation needed to establish a de facto relationship under the Family Law Act 1975.

Spouses who are separated at the time of transaction

A person who is legally married to a first homebuyer is not considered a spouse if they:

• are not cohabiting with the person, and
• have no intention of resuming cohabitation with the person.

Eligible transaction types

The following transactions are eligible for consideration under the First Home Buyers Assistance Scheme (FHBAS):

• Agreements for sale
• Transfers of land

The agreement or transfer must be for the acquisition of a first home or for the purchase of a vacant block of residential land intended to be used as the site of a first home.

The agreement of transfer must be for the whole of the property.

Example

A child is acquiring a 50% share of a property already owned by their parents.

The child is a first home buyer and would like to claim the transfer duty exemption under the First home Buyers Assistance Scheme.

As the parents are to remain on title and only a 50% share of the property is being transferred, the first home buyer will not be eligible to claim a transfer duty exemption or concession under the First home Buyers Assistance Scheme as they are not acquiring the whole of the property.

Ineligible transaction types

The following transactions are ineligible for consideration under the First Home Buyers Assistance Scheme (FHBAS):

• Agreements or transfers for the acquisition of a business (or business premises) However, an agreement for the purchase, or a transfer, of a farming property on which there is a private dwelling is not excluded.
• Agreements or transfers of a holiday home.

Residence requirement

The first home owner or one of the first home owners must satisfy the residence requirement set out in Section 76 of the Duties Act 1997. That is, they must use the property as their principal place of residence for the defined period of time after the completion of the agreement or transfer. The liability date will determine which residence requirement a first home owner must satisfy.

New or existing homes

Transactions with a liability date on or after 1 July 2023

The home must be occupied by the first home owner, or one of the first home owners who is acquiring it as a principal place of residence, for:

• a continuous period of at least 12 months, and
• that occupation must start within 12 months after completion of the agreement or transfer.

Transactions with a liability date before 1 July 2023

The home must be occupied by the first home owner, or one of the first home owners who is acquiring it as a principal place of residence, for:

• a continuous period of at least 6 months, and
• that occupation must start within 12 months after completion of the agreement or transfer.

An agreement or transfer is completed when a purchaser or transferee becomes entitled to possession of the home and, if the interest in the land acquired by the purchaser or transferee is registrable under a law of the State, the interest is so registered.

Vacant land

In the case of an agreement or transfer for the acquisition of a vacant block of residential land, it is sufficient that the vacant block is intended to be used as the site of a home to be occupied by the first home owner, or one of the first home owners who is acquiring it as their principal place of residence.

Permanent members of the Australian Defence Force

Permanent members of the Australian Defence Force do not have to meet the residence requirement if:

• at least 1 of the first home buyers is a member of the Permanent Forces of the Australian Defence Force, within the meaning of the Defence Act 1903 of the Commonwealth (This does not include a member of the Army Reserve, Naval Reserve or Air Force Reserve), and
• each first home buyer is enrolled to vote in State elections under the Electoral Act 2017.

Helpful information

Provisions under the First Home Buyer Legislation Amendment Act 2023

If an agreement for sale or transfer replaces an agreement entered into before 1 July 2023 for substantially the same property and same purchasers, the transaction will be treated as if the agreement was entered into before 1 July 2023 in accordance with the First Home Buyers Amendment Act 2023.

The new provisions do not relate to agreements entered into prior to 1 July 2023, including option arrangements.