Division 4 Transfers between married couples and de facto partners

104A   Meaning of “residential land”

(1)  In this Division, residential land means:

(a)  a parcel of land on which there is:

(i)  one single dwelling or one flat, or

(ii)  one single dwelling, or one flat, and a shop, or

(iii)  a building under construction that, when completed, will constitute one single dwelling or one flat (or one single dwelling, or one flat, and a shop), or

(b)  a strata lot, if it is lawfully occupied as a separate dwelling, or suitable for lawful occupation as a separate dwelling, or

(c)  a land use entitlement, if it confers an entitlement to occupy a building, or part of a building, as a separate dwelling, or

(d)  a parcel of vacant land that is zoned or otherwise designated for use under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) for residential or principally residential purposes.

(2)  Land does not cease to be regarded as land on which there is one single dwelling, or one flat, merely because the land is also used or is capable of being used for the purpose of one other residential occupancy, if that residential occupancy is an excluded residential occupancy.

(3)  In this section:

excluded residential occupancy means:

(a)  one room or one flat, or

(b)  one room and one flat, or

(c)  one suite of rooms (not being a flat), each room of which all occupants of the suite are entitled to occupy, or

(d)  one suite of rooms (not being a flat), each room of which all occupants of the suite are entitled to occupy, and one room, or

(e)  2 rooms, each of which is separately occupied.

flat means a room or suite of rooms (whether or not forming part of a building or a detached building):

(a)  occupied or used as a separate dwelling, or

(b)  so constructed, designed or adapted as to be capable of being occupied or used as a separate dwelling,

      but does not include a single dwelling, a strata lot or a dwelling, or portion of a building, that is occupied under a land use entitlement.

single dwelling means a house:

(a)  occupied or used as a separate dwelling, or

(b)  so constructed, designed or adapted as to be capable of being occupied or used as a separate dwelling,

      but does not include a strata lot or a property commonly known as a shop and dwelling.

104B   Exemption—transfer of residential land

(1)  No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of residential land if:

(a)  as a result of the transfer or agreement, the property is or will be held by a married couple or de facto partners as joint tenants or as tenants in common in equal shares, and

(b)  the residential land:

(i)  is land on which there is a dwelling that, when the transfer of dutiable property occurs, is used as the principal place of residence of the married couple or de facto partners, or

(ii)  is a parcel of vacant land, or land on which there is a building under construction, and the married couple or de facto partners intend to use the residential land as the site of a dwelling to be used as their principal place of residence, and

(c)  the residential land is used solely for residential purposes and not for any other purpose (such as a commercial, industrial or professional purpose), and

(d)  both the transferor and the transferee are the married couple or one of them or the de facto partners or one of them and no other person is a party to the transfer, and

(e)  in the case of de facto partners, the parties to the relationship have lived in the relationship for at least 2 years before the date of the transfer.

(2)  For the purposes of subsection (1) (c), the use of not more than one room on the land for a non-residential purpose is to be disregarded, if the use relates to a business or undertaking that is primarily conducted elsewhere.

(3)  Land may be the subject of an exemption under this section even if it is partly held by another person who is not a part of the married couple or one of the de facto partners.

104C   Concession—transfer of land used as principal place of residence and for other purposes

(1)  If a transfer or agreement for transfer of residential land would be exempt from duty under section 104B, but for the fact that the land has been used or is intended to be used for a purpose other than a residential purpose, the duty chargeable on the transfer or agreement is to be calculated after reducing the dutiable value of the land by the residential apportionment factor.

(2)  The residential apportionment factor is calculated by subtracting the non-residential apportionment factor from 1.

(3)  The non-residential apportionment factor is:

(a)  if the land is mixed development land or mixed use land and there is an apportionment factor entered in the Register of Land Values in respect of the land value of the land under Division 5 or 5A of Part 1B of the Valuation of Land Act 1916—that apportionment factor, or

(b)  if paragraph (a) is not applicable—such other apportionment factor as the Chief Commissioner considers fair and reasonable to reflect the use of the land for non-residential purposes, subject to subsections (4) and (5).

(4)  If there is no apportionment factor entered in the Register of Land Values in respect of the land value of the land, and the land is mixed development land or mixed use land, the Chief Commissioner may request the Valuer-General to determine the apportionment factor in respect of the land concerned.

(5)  If a request is made under subsection (4):

(a)  the Valuer-General must determine the apportionment factor concerned and enter it in the Register of Land Values under the Valuation of Land Act 1916, and

(b)  that apportionment factor is to be applied as the non-residential apportionment factor in respect of the residential land.

Note. Divisions 5 and 5A of Part 1B of the Valuation of Land Act 1916 allow objections to be made against the amount of the apportionment factor.

(6)  Duty on the transfer or agreement is to be charged at the general rate provided for by section 32. Sections 32A–32C do not apply.

(7)  In this section:

mixed development land has the same meaning as in Division 5 of Part 1B of the Valuation of Land Act 1916.

mixed use land has the same meaning as in Division 5A of Part 1B of the Valuation of Land Act 1916.