71 Restrictions on eligibility—previous ownership of residential property or first home concession
(1) A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee is a first home owner.
(2) A first home owner is an individual:
(a) who has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner, and
(b) whose spouse (if any) has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner.
(4) For the purpose of this section, a person is the spouse of another person if:
(a) they are legally married, or
(b) they are living together as a couple in a de facto relationship.
(5) If the Chief Commissioner is satisfied that, at the time of making an application under the scheme, a purchaser or transferee:
(a) is legally married but not cohabiting with the person to whom the applicant is legally married, and
(b) has no intention of resuming cohabitation,
the person to whom the purchaser or transferee is legally married is not to be regarded as the applicant’s spouse.
(6) For the purpose of determining eligibility, the ownership at any time of residential property, or a previous application under the scheme, is to be disregarded if the residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust, or as an executor under a will, or the application was made by the purchaser or transferee in his or her capacity as trustee or executor.
(7) The fact that a purchaser or transferee under an agreement or transfer is not a first home owner does not prevent the agreement or transfer from being eligible under the scheme if:
(a) one or more of the purchasers or transferees under the agreement or transfer is a first home owner, and
(b) the total ownership share in the property to which the application relates that is being acquired by purchasers or transferees who are not first home owners does not exceed 5%.
Note. A purchaser or transferee is not considered to be a first home owner unless both the purchaser or transferee, and his or her spouse (if any), have not owned residential property before. See subsection (2).
(8) For the purposes of this section, a person who is, or has at any time been, the holder of a leasehold interest granted by the Commonwealth in residential property in the Australian Capital Territory is taken to own or have owned that residential property.