What Is Nomination in Queensland Real Estate? Definition and Agent Guide

Nomination in Queensland real estate is the contractual right of an off-the-plan buyer to substitute a different person or entity as the settling purchaser under the original contract. The original buyer nominates a nominee — the incoming buyer — to take their place at settlement, typically without the developer having to issue a new contract or re-market the property. It is a deliberate investor tool, not a quirk, and understanding how it works, and where it can misfire, is essential knowledge for any agent operating in Queensland’s new property market.

How Nomination Works in Queensland Real Estate

The nomination clause allows the buyer to nominate another person to be the buyer of the property. In practical terms, the original purchaser — often called the nominator — enters into an off-the-plan contract in their own name (or their company’s name), pays the required deposit, and then, prior to settlement, executes a deed of nomination in favour of the incoming party. The nominated buyer steps into the original buyer’s contractual shoes and proceeds to settle directly with the developer.

A term ‘and/or nominee’ is also known as a ‘nominee sale’. This clause in the contract of sale provides the option for someone who has purchased a property to find another buyer to step in and have the contract transferred to their name and finalise the settlement. The instrument used to execute this transfer is typically a Deed of Nomination or a Letter of Nomination, prepared by the buyer’s solicitor and signed by both the original buyer and the incoming nominee.

Critically, the title to an off-the-plan property doesn’t actually pass to the new buyer until settlement is reached. This is what makes nomination technically possible: because title has never yet been in the buyer’s name — the lot still doesn’t legally exist in registrable form until the plan is registered — there is no need for a transfer of title between the nominator and the nominee. An off-the-plan sale is a contract for the sale of land where the lot, building, or scheme does not yet exist in registrable form at the time of contract. The buyer is committing to purchase a property that will be created — through subdivision, construction, or both — by the time of settlement.

Whether a nomination is available at all depends entirely on the specific wording of the off-the-plan contract. Some developers have a condition to restrict the re-sale of a property prior to settlement. Some also charge fees to complete the nomination sale. Agents should read nomination provisions carefully at the time of sale, not at the time a buyer needs to exercise one.

The nomination right in Queensland is distinct from a full novation of the contract (which requires the developer’s active consent to release the original buyer entirely) and from an assignment of contractual rights (which carries different duty implications). Understanding these distinctions matters — primarily because of how the Duties Act 2001 (Qld) treats each scenario.

Why Nomination Matters for Queensland Agents

The nomination off plan Queensland definition has real commercial significance. Investors frequently acquire off-the-plan lots during presales, when entry prices are competitive and construction timelines are long — sometimes 18 to 36 months for large apartment projects or master-planned land estates. Between contract signing and settlement, personal and financial circumstances change. An investor’s borrowing capacity can deteriorate, their preferred purchasing entity may change, or they may simply wish to on-sell the contract at a profit while avoiding the costs of a full two-step resale.

Nomination clauses are equally important for buyers investing in an off the plan property, where circumstances may change from the time they sign the contract of sales to the property settlement date. This allows buyers to nominate another buyer to the property if they are unable to complete the property purchase.

For agents selling off-the-plan stock — whether developer projects or resale pre-settlements — the nomination mechanism creates a distinct buyer profile: the secondary market buyer. This buyer is not purchasing from the developer. They are purchasing the original buyer’s contractual position. As an agent, you are facilitating the identification of a nominee, not the execution of a new contract of sale. Selling an off the plan property before settlement is also known as a nomination sale.

From a commission and representation perspective, it is worth noting that the agent’s role in a nomination transaction can be less clearly defined than in a standard resale. The original contract price — set between the developer and the original buyer — does not change. Any premium the nominator achieves above their purchase price is a separate commercial arrangement between nominator and nominee. Agents who assist with nomination sales should take qualified legal advice about how their commission and engagement agreement properly captures this work.

There is also a residual liability dimension that agents must communicate clearly. Most important — you remain bound. Even though you have a buyer to take over your purchase, if that buyer does not complete the purchase, you are still bound to settle with the developer. The nominator is not released from their original contractual obligations unless the developer explicitly agrees to a novation. In a nomination, the developer’s recourse against the original buyer survives. This is not a small detail: it is a material risk that every agent referring a client toward a nomination strategy should make explicit.

The Legal and Duty Landscape: What Can Go Wrong

This is where nomination off plan Queensland definition connects directly to agent responsibility. Agents are not legal advisers, but they need sufficient fluency with the legal framework to avoid steering clients into traps — and to identify when a transaction requires immediate escalation to a solicitor.

Transfer Duty and the Double Duty Risk

The most consequential legal issue in Queensland nomination transactions is double transfer duty. Care must be taken when drafting such a provision to ensure the ultimate purchasing entity does not acquire rights under the option agreement, as this would amount to an assignment and result in double transfer duty implications.

The most important thing to look for in drafting of a nomination clause is to ensure that your ultimate buyer does not obtain any rights under the Put and Call Option Agreement. This means that you will still be the one to exercise the Call Option at the appropriate time and not the ultimate buyer. The ultimate buyer has their rights under the resulting contract once you have exercised the Call Option. This may sound like a subtle difference, however it may be the difference in whether your nomination triggers double transfer duty in Queensland or not.

Under the Duties Act 2001 (Qld), a properly structured nomination — where the nominee only acquires rights under the resulting contract of sale, not under any prior option deed or agreement — should attract duty once, on the purchase price, in the nominee’s hands. But where a nomination is drafted or executed carelessly, it can be treated as an assignment of rights under an option deed, generating a separate dutiable transaction and triggering duty twice: once on the option and once on the transfer.

Disclosure Obligations Under the Property Law Act 2023

The long-awaited Property Law Act 2023 (Qld) came into effect on 1 August 2025, bringing in a major overhaul of Queensland’s property laws. While off-the-plan sales are excluded from the PLA 2023 disclosure regime and are still governed by the Land Sales Act 1984 and other relevant legislation, the PLA 2023 has direct relevance where nomination intersects with option transactions on registered lots.

In contracts involving an option and a nominee, sellers must disclose information twice: once before the option deed is signed, and again before the nominee contract is executed. This is a material compliance obligation for developers and their solicitors, and agents operating in project sales or presale environments need to understand that a nomination on an option-based structure triggers fresh disclosure requirements, not a simple name change.

Where a grantee of an option appoints a nominee buyer pursuant to an option deed, the seller will need to provide a further updated disclosure to the nominee buyer (which must be true as at the time the statement is given to the nominee buyer) before the nominee signs the contract. Grantors will need to ensure that their option deed includes a mechanism to give an updated disclosure statement to the nominee after nomination and ensure that there is sufficient time to obtain any updated searches which the seller is required to include with the disclosure.

The “And/or Nominee” Drafting Problem

Agents sometimes encounter buyers — particularly interstate investors familiar with Victorian practice — who want to insert “and/or nominee” directly into the buyer name field of the REIQ contract. In Queensland, this creates problems. Having “and/or nominees” on a Qld contract is viewed negatively and is considered to make the contract appear somewhat tenuous. More seriously, it can create uncertainty about the identity of the contracting party, affecting the contract’s enforceability and potentially creating duty complications.

The correct approach in Queensland is for the nomination right to be contained within a special condition in the contract or within a separate nomination deed, drafted by a qualified solicitor, not written into the buyer’s name field. The contract allows for the inclusion of any special conditions, such as early access to the property for renovations or tenant preparation, which cannot be written by an agent in Queensland and must be prepared by a legal practitioner for clarity.

Agents should never draft nomination clauses themselves. This is legal work in Queensland.

What Queensland Agents Need to Know About Nomination

Off-the-plan projects of any scale — a 20-lot land estate in Ripley, a 150-apartment tower in Fortitude Valley — will generate nomination requests over a development cycle. Population growth, sustained interstate migration, and the scale of presales activity in South East Queensland means this is a practical daily reality for project sales agents. Understanding the mechanics protects your clients and your own professional standing.

Know the contract before the buyer needs an exit

When you list or sell an off-the-plan product, read the nomination clause at the outset. You’ll need to review the contract of sale prior to signing. Some developers have a condition to restrict the re-sale of a property prior to settlement. Some developers prohibit nominations entirely; others allow them subject to approval and a fee. Knowing this before a buyer signs prevents serious problems later.

The Land Sales Act 1984 (Qld) governs off-the-plan proposed lot sales, including the disclosure obligations that apply to any change in the buyer’s identity. Selling off the plan land in Queensland requires more than a signed contract. The Land Sales Act 1984 and, where applicable, the Body Corporate and Community Management Act 1997 impose clear and enforceable disclosure obligations on property developers.

Developer approval is not guaranteed

Nomination rights are contractual, not statutory. A nomination clause only exists if the contract includes one. Even where a clause exists, it typically requires developer consent. This strategy requires the Put and Call Option Agreement to have an appropriately drafted nomination clause. It is especially important that the clause is drafted so that it does not accurately trigger transfer duty in Queensland. Developer approval may also be conditional on the incoming nominee’s financial capacity to settle — developers have a legitimate interest in knowing that the person settling is capable of doing so.

CGT implications for the nominating investor

Capital gains tax considerations apply where the original buyer is making a profit on the nomination. In some situations if re-sold at a profit you may be liable to pay capital gains tax. The profit realised by a nominator — the difference between the original purchase price and the nomination fee received from the incoming buyer — is a capital gains event, and potentially an income event if the ATO considers the activity to be a regular business. This is a matter for the client’s accountant, but it is a conversation an alert agent should initiate early.

Foreign buyers face additional layers

For overseas investors or foreign nationals holding off-the-plan contracts and seeking to nominate, the position is more complex still. Foreign Investment Review Board (FIRB) approval requirements apply at the point of acquisition, which means a nomination to a different foreign entity — or from a foreign entity to an Australian citizen — may require fresh FIRB consideration. Option deed is often intertwined with complex regulatory regimes, such as tax implications, foreign investment restrictions or corporate governance rules. Agents working in projects with significant overseas buyer profiles should ensure this is flagged to their clients at contract stage, not when a nomination request arrives.

Sunset clauses run in the background

The other critical timing issue for nomination transactions is the sunset clause. Law reforms that commenced on 22 November 2023 mean Queensland sellers can only use sunset clauses to terminate ‘off the plan’ contracts for land in any of these circumstances. The Queensland Government addressed this misuse by amending the Land Sales Act 1984 (Qld) in November 2023. The new laws severely restrict a seller’s ability to terminate an off-the-plan land contract (excluding most strata apartments/townhouses) under a sunset clause.

Where a nomination is being arranged because a buyer needs to exit and the development is running close to its sunset date, both the original buyer and the incoming nominee need legal advice urgently. The interaction between nomination rights, sunset provisions, and the developer’s disclosure obligations is not something an agent can navigate alone.

What This Means for Queensland Agents

Nomination is a tool, not a problem. Used correctly and within a well-drafted contract, it gives investors the flexibility to manage their position across a long development cycle — changing entity structures, on-selling at a profit, or simply managing changed personal circumstances before settlement.

Your role as the agent is not to structure nominations. That is legal work. Your role is to understand the concept well enough to identify when a client needs one, to know what the contract says about it before a client asks, and to connect the parties with qualified solicitors at the appropriate time.

Three practical rules for Queensland agents:

• Read the nomination clause at listing, not at crisis point. Developers vary significantly in what they permit. Know before you are asked.
• Never insert “and/or nominee” into the buyer name field. Direct your buyer’s solicitor to include a properly drafted special condition if the buyer wants a nomination right.
• Always confirm the nominating buyer’s residual liability. The nominator typically remains bound if the nominee fails to settle. Make sure your client understands this in plain terms before they sign anything.

The off-the-plan market in Queensland — from master-planned estates in Ipswich and Moreton Bay to inner-city apartment towers in Woolloongabba and Hamilton — generates nomination requests as a matter of routine. Agents who understand the mechanics serve their clients better and protect themselves from liability when things don’t go to plan.