Foreign Acquisitions and Takeovers Regulation 2015 (Cth)

PART 3 - EXEMPTIONS  

Division 3 - Exemptions for certain actions  

Subdivision D - Actions relating to Australian land etc.  

SECTION 38   ACQUISITIONS OF INTERESTS IN RESIDENTIAL LAND  

38(1)    
The excluded provisions do not apply in relation to an acquisition of an interest in residential land by a foreign person if a subsection of this section applies in relation to the acquisition.

Acquisitions by persons with connection to Australia

38(2)    
The foreign person meets any of the following conditions:

(a) the foreign person is, at the time of acquisition, the holder of a permanent visa (within the meaning of the Migration Act 1958 );

(b) the foreign person is, at the time of acquisition, the holder of a special category visa (within the meaning of that Act);

(c) if the foreign person had entered Australia lawfully immediately before the acquisition, he or she would have been entitled to the grant, on presentation of a passport, of a special category visa (within the meaning of that Act);

(d) the foreign person is an Australian corporation and would not be a foreign person if interests held directly in it by any one or more of the following persons were disregarded:

(i) a person to whom any of paragraphs (a), (b), (c) and (e) applies;

(ii) a person to whom any of paragraphs 35(1)(a) to (c) applies;

(iii) a person covered by a previous application of this paragraph;

(e) the foreign person is the trustee of a resident trust at the time of the acquisition, and would not be a foreign person if interests held directly in it by any one or more of the following persons were disregarded:

(i) a person to whom any of paragraphs (a) to (d) of this subsection applies;

(ii) a person to whom any of paragraphs 35(1)(a) to (c) applies;

(iii) a person covered by a previous application of this paragraph.

Acquisitions of interests in residential land by spouses and de facto partners of Australian citizens etc.

38(3)    
Both of the following apply:

(a) the person is the spouse or de facto partner (within the meaning of the Acts Interpretation Act 1901 ) of:

(i) a person who is, at the time of acquisition, an Australian citizen; or

(ii) a person who is, at the time of acquisition, the holder of a permanent visa (within the meaning of the Migration Act 1958 ); or

(iii) a person who is, at the time of acquisition, the holder of a special category visa (within the meaning of that Act); or

(iv) a person who, if the person had entered Australia lawfully immediately before the acquisition, would have been entitled to the grant, on presentation of a passport, of a special category visa (within the meaning of that Act);

(b) the interest is held by the person and his or her spouse or partner as joint tenants.

Acquisitions of interests in residential timeshare schemes

38(4)    
Both of the following apply:

(a) the acquisition is of an interest in a timeshare scheme that relates to residential land;

(b) the foreign person ' s total entitlement, alone or together with one or more associates, under the timeshare scheme to access the land is no more than 4 weeks in any year.

Acquisition of interests in residential land used for residential care, retirement villages and certain forms of student accommodation

38(5)    

All of the following apply:

(a)    the land is used for:

(i) premises that provide for residential care; or

(ii) a retirement village; or

(iii) premises that provide accommodation to students in connection with an education institution that is not a school;

(b)    the foreign person is not a foreign government investor;

(c)    the value of the land acquired is less than:

(i) if the land is covered by paragraphs 52(6)(b) and (c) - the value prescribed by item 3 of the table in subsection 52(5) ; or

(ii) otherwise - the value prescribed by item 4 of the table in subsection 52(5) .

Note: A value prescribed by an item in the table in subsection 52(5) may be indexed under section 58 .

Certain acquisition of interests in residential land used as retirement villages

38(6)    

All of the following apply:

(a) the foreign person has an existing interest in the land;

(b) the land is used for a retirement village that the foreign person owns;

(c) the foreign person increases their existing interest in the land by acquiring an interest in a dwelling contained in the retirement village.