What are the FIRB rules for buying off the plan as a foreign buyer?

Why off-the-plan homes are open to foreign buyers

The Act defines a new dwelling as one that will be, is being or has been built on residential land, has not been sold before as a dwelling, and has not been lived in. A dwelling that exists only on a plan fits the first limb. Treasury's guidance says approval for a new dwelling is generally given subject to a price condition: the price must be no greater than the value stated in the approval. There are generally no conditions on use, so the owner can live in the home or rent it out.

Treasury also says developers selling off the plan can apply for approval on behalf of foreign customers, and that a foreign buyer is then generally spared their own application. That is the developer's exemption certificate.

Three ways a buyer can be covered

Application fees for the second and third routes follow the same price bands: for 2026-27 a new dwelling of $1 million or less costs $15,600 and each further $1 million adds $31,300 (see fees). The exemption certificates page explains the buyer's own certificate.

The FIRB clock starts at the contract

Section 15 of the Act says a person is taken to acquire an interest in land when they enter an agreement to acquire it. Where the agreement does not become binding until a condition is met, the person acquires the interest only when it becomes binding. The Act's own note gives the example of a condition satisfied by the Treasurer giving a certificate or no objection notification: no acquisition happens before then.

The ATO's page says the same thing in practical terms. Before entering any contract, a foreign buyer needs approval or a certificate, and a buyer who has already signed can still apply for a certificate if the contract is still conditional.

Two consequences follow. First, approval is about the contract date, so the order of events matters more than the settlement date. Second, Treasury's guidance says a no objection notification usually gives 12 months to take the action (Regulation 61 deals with this time limit), and an application to extend it must be made 2 months before it ends. For an off-the-plan purchase, settlement follows completion of the building, so it can fall well after the contract.

Settlement matters for other rules. The register notice is due within 30 days of settlement for freehold land, and the ATO says the first vacancy year starts on the occupation day, the first day you have the right to occupy, which for a new dwelling is the day a fitness for occupancy certificate is issued.

Price, lot and contract changes

Approvals and certificates are tied to a price. Treasury's example is a certificate for $1 million used on a $1.3 million purchase: the certificate is not valid for that purchase, and the buyer has breached the law and may face significant penalties.

If the description of the land changes after approval, for example a new lot number, Treasury's fees guidance says a variation to update it generally has its fee waived. A change that widens what the approval covers is generally a new application rather than a variation (Guidance Note 2).

Sunset clauses (NSW). NSW Government guidance describes a sunset clause as a contract term requiring the plan to be registered, or an occupation certificate issued, by a set date, otherwise either party can rescind. In NSW a developer has to apply to the Supreme Court to rescind under a sunset clause unless the buyer agrees. The position in other states and territories depends on their own laws. The Treasury guidance notes reviewed for this guide do not address sunset clauses, so a replacement contract at a different price or for a different lot is a question to put to a conveyancer and, if needed, the ATO.

Deposits, duty and surcharges

The FIRB application fee is paid to the ATO when applying and is separate from the purchase price. The deposit is a contract matter. In NSW, the deposit and any instalments must be held in a trust or controlled money account and cannot be released to the vendor before settlement. A deposit bond, or a bank-issued substitute for cash, can replace the cash deposit only if the developer agrees before the contract is signed. How a deposit is treated if approval is refused depends on the contract terms.

Duty timing differs by state. In NSW, transfer duty must generally be paid within 3 months of signing the contract, or at settlement if that comes first. NSW offers a deferral of up to 12 months on off-the-plan homes, but it is not available if any purchaser is a foreign person when the contract is signed. NSW surcharge purchaser duty is 9% of the dutiable value (Revenue NSW, page updated August 2026), worked out at the liability date, generally the contract date.

Worked example (NSW). An $800,000 off-the-plan apartment bought with the buyer's own approval has a 2026-27 FIRB fee of $15,600. If dutiable value equals the price, the NSW surcharge is 9% of $800,000 = $72,000, on top of ordinary transfer duty. The FIRB fee is paid when applying, and the duty is generally due within three months of signing, which can be well before the building is finished. See state surcharges for other states.

Frequently asked questions

firbapproval.com.au is an independent guide. It is not affiliated with, endorsed by or connected to the Foreign Investment Review Board, the Australian Treasury or the Australian Taxation Office. We do not lodge or process applications. Applications are made to the ATO. General information only, not legal, tax, migration or financial advice.