What Is a New Dwelling in Queensland Real Estate? Definition and Agent Guide

A new dwelling, for the purposes of Queensland real estate practice and foreign investment law, is a residential property that has not previously been sold as a dwelling, or — where it forms part of a developer’s development — has not been previously occupied for more than 12 months in total. The distinction matters enormously in practice: it is the boundary between what a foreign buyer may be permitted to purchase under Australian foreign investment rules and what is now, as of 1 April 2025, effectively off limits to most foreign persons altogether. Getting this classification wrong can kill a contract, expose a vendor to a failed sale, or land a buyer in breach of Commonwealth law.

How New Dwelling Works in Queensland Real Estate

The Legislative Definition

Under the Foreign Acquisitions and Takeovers Act 1975 (Cth), an established dwelling means a dwelling (except commercial residential premises) on residential land that is not a new dwelling. The corollary definition of a new dwelling flows from that: a residential property that has not previously been sold, or, in the context of a developer’s development, has not been previously occupied for more than 12 months in total. A property is considered “sold” once a binding purchase agreement has been entered into, regardless of whether settlement has occurred. This is a critical point — the moment an unconditional contract is exchanged, the clock on “previously sold” status starts.

The practical consequence is that a dwelling that was contracted off-the-plan, then fell through before settlement, may still have lost its new dwelling status depending on how the Act and FIRB’s published guidance are read. Agents marketing resales of off-the-plan apartments that have changed hands before occupation need to be especially careful. The safe approach is to confirm the property’s status in writing with the developer and, where necessary, direct the buyer to independent legal advice before a contract is prepared.

New Versus Established: The Bright Line Foreign Buyers Need

All dwellings that are not new dwellings are established dwellings. That binary classification drives the entire foreign investment framework for residential property. A foreign person must obtain FIRB approval before acquiring a new dwelling. However, it is FIRB policy to approve such applications without conditions. The rationale is that sales of new dwellings to foreign persons do not reduce the housing stock in Australia. This is the policy logic underpinning why new dwellings occupy a structurally different position in the framework: foreign capital directed at new supply is broadly welcomed; foreign capital competing with Australian residents for existing housing stock is not.

The established dwelling ban runs from 1 April 2025 until 31 March 2027. Under this regulation, foreign persons (including temporary residents and foreign-owned companies) cannot buy established homes unless specific exceptions apply. However, it is important to note that foreign investment in new properties or land for development is not impacted by the ban. New dwellings therefore represent the primary legal pathway for foreign buyers seeking residential property in Queensland during this period.

Near-New Dwellings: A Related Category

The Act and FIRB guidance recognise a closely related category: the near-new dwelling. Foreign persons may apply for approval to purchase new or near-new residential dwellings through either a no objection notification when seeking approval for a specified property, or through an exemption certificate under section 43B of the Regulation when an exact property is not yet identified. The near-new category captures developer-sold dwellings that have had some prior occupation but still fall within the Act’s threshold. The two categories are treated similarly in the approval process, though the precise facts of each transaction determine which pathway applies.

Why New Dwelling Matters for Queensland Agents

The Established Dwelling Ban Has Redirected Foreign Demand

In 2022–23, new dwellings and vacant land represented 66% of foreign purchase transactions in Australia. In Queensland, 403 established dwellings — 36% of all foreign purchase transactions — were purchased by foreign buyers in that year. The ban enacted from April 2025 has effectively redirected that remaining 36% of foreign purchasing activity away from established stock. Queensland agents working in high-density markets — inner-Brisbane apartments, Gold Coast towers, Sunshine Coast masterplanned estates — will find that foreign buyer demand is now concentrated almost exclusively in new stock. Understanding how to identify and facilitate compliant new dwelling transactions is no longer a niche skill; it is a core competency.

Although foreign investment is a relatively small portion of the market, there may be a minor impact on the number of prospective buyers on specific market segments, such as high-end properties or properties in areas popular with foreign buyers. That impact is amplified for agents who work those segments. In prestige coastal markets, in the inner-city unit sector, and in new masterplanned communities marketed to Asian investor buyers, the practical effect of the new dwelling classification is felt on every second enquiry.

The Developer Exemption Certificate: How It Streamlines Your Transaction

The most operationally significant mechanism for Queensland agents is the New (or Near-New) Dwelling Exemption Certificate. Property developers can apply for such a certificate. Where a developer holds one, a foreign person purchasing a new or near-new dwelling in that development will not generally be required to seek their own individual foreign investment approval. This can significantly streamline the sale process.

Individuals purchasing a new dwelling from a developer are exempt from the requirement to obtain individual FIRB approval if the developer has pre-approval to sell to foreign persons. In practice, this means that when you are selling off-the-plan in a development where the developer holds a current exemption certificate, a foreign buyer can execute a contract without the transaction being made conditional upon individual FIRB approval. The developer’s certificate covers them. If the developer provides the buyer with a copy of the certificate, the buyer does not need to seek separate foreign investment approval for the proposed acquisition.

Always verify that the exemption certificate is current and that it covers the specific lot being purchased. The certificate will generally be valid for 12 months from the date of approval. An expired certificate provides no protection. Request confirmation in writing from the developer or their solicitor before preparing the contract.

AFAD Applies Regardless of FIRB Pathway

A distinction that agents must internalise clearly: FIRB approval status and AFAD liability are separate issues governed by different legislative regimes. Although a person may be exempt from needing to obtain FIRB approval, it is still possible that they will be required to pay Additional Foreign Acquirer Duty (AFAD).

AFAD is an extra 8% of (stamp) duty that applies to transactions that are liable for transfer duty, landholder duty or corporate trustee duty. AFAD was introduced to ensure foreign acquirers of residential property who benefit from government services and infrastructure also contribute to their delivery, the same as local buyers. On a $1 million new apartment, that is $80,000 in AFAD alone. This is a state revenue obligation administered by the Queensland Revenue Office under Chapter 4 of the Duties Act 2001 (Qld), and it applies to both new and established dwellings purchased by foreign persons. A foreign buyer who is covered by a developer’s FIRB exemption certificate and therefore does not need individual federal approval still faces AFAD at settlement — unless a specific exemption applies.

Common Mistakes Agents Make With New Dwelling Classification

Assuming “Never Lived In” Means “New Dwelling”

The most frequent error is treating an unoccupied property as automatically a new dwelling. Physical occupation history is only one element of the test. The critical question is whether the property has previously been sold as a residential dwelling. A property is considered “sold” once a binding purchase agreement has been entered into, regardless of other factors. A property that was contracted to an earlier buyer — even if that contract subsequently terminated before settlement — may have lost its new dwelling status.

This scenario arises regularly in Queensland’s off-the-plan market when buyers rescind during the cooling-off period or default before settlement. If the developer re-lists the property, agents should confirm with the developer’s legal team whether new dwelling status has been preserved, rather than assuming it has. The answer affects which buyers are legally eligible to purchase and whether the transaction requires individual FIRB approval as a condition.

Confusing “New Dwelling” With “New Home” for Transfer Duty Purposes

Queensland transfer duty law uses the term new home for the purposes of the first home concession and the home concession — a distinct concept from new dwelling under federal foreign investment law. These are separate legislative regimes. An agent advising a foreign buyer on their FIRB obligations should not conflate the Queensland Revenue Office’s new home category with the FIRB new dwelling definition. They overlap in many transactions but they are not legally equivalent.

Treating House-and-Land Packages as Covered by Exemption Certificates

For the purposes of a New (or Near-New) Dwelling Exemption Certificate, a ‘development’ does not include house and land packages. This is a direct trap for agents working in Queensland’s active land estate markets. A foreign buyer purchasing a titled lot with a separate construction contract is not covered by a developer’s exemption certificate. They need individual FIRB approval, and the contract should be structured accordingly with an appropriate special condition. Failing to include that condition — or failing to identify the buyer as a foreign person at all — creates serious risk for all parties.

Missing the FIRB Warranty in the Standard Contract

There are standard terms in REIQ contracts which assume that a buyer warrants that FIRB approval does not apply to the contract. In the event this warranty is breached, the seller can terminate the contract. A purchaser must provide notice if they are subject to FIRB approval and follow the procedure in the standard terms to obtain approval. An agent who does not identify a buyer’s foreign person status before contract preparation may inadvertently allow the buyer to sign a contract containing a warranty they are in breach of the moment ink hits paper. The seller could then terminate. Know your buyer.

The $3 Million Threshold for Developer Certificates

A New (or Near-New) Dwelling Exemption Certificate will generally provide approval only for a foreign person to make a purchase of up to $3 million in a single development. The foreign person will need to seek FIRB approval on their own if they want to buy a property valued at more than $3 million. In Queensland’s prestige apartment market — particularly Broadbeach, Noosa, and riverside Brisbane — the $3 million threshold is not unusual. Agents active in those price brackets need to ensure that foreign buyers purchasing above this figure have individual FIRB approval in hand or as a condition of the contract, regardless of whether the developer holds a certificate.

What Queensland Agents Need to Know About New Dwelling FIRB

Identifying Foreign Person Status Before the Contract

FIRB approval must usually be obtained before entering into a contract if the buyer is foreign. The agent’s obligation is not to provide legal advice on FIRB — that sits with the buyer’s solicitor or conveyancer. The agent’s obligation is to identify whether a buyer may be a foreign person and direct them to obtain that advice before signing. Both AFAD and FIRB can apply at the same time in the same transaction, and the foreign buyer must satisfy both when applicable. Identifying the buyer’s status early prevents the deal from unravelling mid-contract.

A practical screening question at the point of enquiry: Is the buyer an Australian citizen, Australian permanent resident, or a New Zealand citizen holding a Special Category Visa (subclass 444)? If yes, FIRB and AFAD generally do not apply. If no, foreign person rules are likely triggered and the buyer needs independent legal advice before signing. Rather than giving specific advice, simply being able to identify if the purchaser may need to explore AFAD or FIRB and would need to obtain independent legal advice is the correct approach for agents.

Confirming the Developer’s Certificate Status for Off-the-Plan Sales

When selling new dwellings in a development, agents should obtain written confirmation from the developer of the following before marketing to foreign buyers:

• Whether a New (or Near-New) Dwelling Exemption Certificate exists for the relevant stage
• The expiry date of that certificate
• The per-dwelling fee obligations that apply when a foreign person purchases under the certificate
• Whether the specific lot falls within the certificate’s scope

A developer may apply for a New (or Near-New) Dwelling Exemption Certificate covering the first stage of a development but be unable to provide details for subsequent stages. The certificate granted covers stage one, with a separate application required for later stages. Staged developments are common in Queensland’s masterplanned communities. An exemption certificate covering Stage 1 does not automatically cover Stage 3. Verify stage by stage.

Developers pay a fee when applying for the certificate. If the certificate is granted, a separate fee is also payable for each dwelling sold to a foreign person under the certificate. Some developers factor these costs into their pricing; others do not. Foreign buyers should be made aware that the total cost of acquisition includes the standard FIRB application fee or the per-dwelling fee under the developer’s certificate, plus AFAD, plus standard transfer duty and conveyancing costs.

Structuring the Contract Correctly

Where a foreign buyer requires individual FIRB approval — either because no developer exemption certificate applies or because the property is priced above the certificate threshold — the contract must be made conditional upon FIRB approval being obtained. It is important for a buyer to factor in these costs into their budget and also ensure the contract is subject to the approval being obtained and allows sufficient time for the approval. The standard FIRB review period is 30 days, but applications can be extended. As a practical matter, agents should allow 45 days as a minimum for the FIRB condition in these contracts.

Buyers must also register their property purchase with the ATO’s Register of Foreign Ownership of Australian Assets within 30 days of settlement using the online system. This is a post-settlement obligation on the buyer, but agents who understand the full compliance picture are better placed to manage client expectations and prevent last-minute complications.

AFAD Timing: The Date the Contract Is Signed

If a foreign individual enters into an agreement involving AFAD residential land but obtains permanent residency by the settlement date, AFAD will still apply. Because duty is imposed at the time the liability for duty on the transaction arises, which is the date the agreement was made, the change in resident status will not affect the liability. This is one of the most counterintuitive points in the AFAD regime. An overseas buyer who signs a contract in January and is granted permanent residency in March still owes AFAD because they were a foreign person when the contract was entered into. Make sure buyers understand this before signing.

What This Means for Queensland Agents

The new dwelling classification is not a technicality to leave to solicitors. It determines which buyers can legally purchase a property, whether a contract needs to be made conditional on FIRB approval, and whether a foreign buyer will face a six-figure duty bill. Getting it wrong doesn’t just create inconvenience — it can result in contracts being terminated, settlements failing, or buyers being in breach of Commonwealth law.

The practical standard for agents is straightforward. First, screen buyers for foreign person status before contract. Second, confirm whether the property qualifies as a new dwelling under the Act — which requires knowing not just whether the property has been physically occupied, but whether it has previously been the subject of a binding sale agreement. Third, where a developer’s exemption certificate exists, verify it is current, covers the relevant stage, and applies to the specific lot. Fourth, for all foreign buyers, ensure that either the developer’s certificate pathway is confirmed in writing, or that individual FIRB approval is a condition of the contract with realistic timeframes.

From 1 April 2025, any offer from a foreign investor requires additional attention. If the offer is accepted by the vendor, there is a risk that the buyer may not be able to follow through on the purchase unless they meet the specific exemptions. As agents, it is beneficial to be aware of the buyer’s residency status and confirm whether they fall under any exceptions to the ban.

The two-year established dwelling ban has, in effect, made new dwelling classification a mandatory checkpoint on every transaction involving a foreign buyer in Queensland. Agents who internalise this framework protect their vendors, their buyers, and their own professional standing. Those who treat it as someone else’s problem will eventually face a failed settlement that could have been avoided in the first fifteen minutes of the buyer conversation.