If a family member wishes to transfer to another family member on title, this will involve a change in the property title and, therefore, this type of transfer will be subject to stamp duty unless the following exemptions or concessions apply:
- transfer of an interest in that person’s home to their spouse;
- change of tenure between joint tenants and tenants in common;
- manufactured home.
Particular residences—transferring an interest to one’s spouse
Stamp duty is not payable on the transfer of an interest in one’s home to their spouse if all the following apply:
- the transfer is by way of gift;
- after the transfer, the spouse couple will own the entire home as joint tenants or tenants in common in equal shares;
- the home is or will be their principal residence.
This is called a Section 151 exemption which is referred to in the Duties Act 2001.
The interactive help tool from the Queensland Revenue Office may be used to check eligibility.
Transferring an interest in property to one’s spouse may impact their land tax liability.
Change of tenure between joint tenants and tenants in common
Stamp duty is not payable on a transfer, or an agreement to transfer if all the following apply:
- the change is from joint tenants to tenants in common, or vice versa;
- the value of each co-owner’s interest in the property does not change.
Example – exemption applies
This is called a Section 143 exemption which is referred to in the Duties Act 2001.
Two sisters own an investment property together as joint tenants. For estate planning purposes to change the tenure from joint tenants to tenants in common in equal shares. The sisters will not be liable to pay stamp duty.
Example – exemption does not apply
A mother and her son own and occupy a house together as tenants in common in unequal shares.
The mother owns 75% and her son owns 25%. The mother decides to transfer 25% of the property to her son.
They will have equal ownership after the transfer, so agree to hold the property together as joint tenants.
This will change the tenure as well as ownership therefore stamp duty is payable.
Depending on the circumstances, the son may be eligible for a home concession on the 25% acquired.
Manufactured homes
Stamp duty is not payable on the transfer, or agreement for the transfer, of a manufactured home if the home is either:
- positioned on a site under a site agreement;
- not positioned on a site, but
- has been acquired for positioning on a site under a site agreement; and
- the transfer or agreement does not involve agreement for the transfer of ownership of land.
The home owner or the tenant must use the manufactured home as their principal place of residence. The site agreement will contain information as to whether the owner may reside in the home on a permanent or temporary basis.
This is called a Section 138 exemption which is referred to in the Duties Act 2001. Section 6 -14 of the Manufactured Homes (Residential Parks) Act 2003 can also be referred to.
Conclusion
Overall, if a family member wishes to transfer to another family member on title, this will involve a change in the property title and, therefore, this type of transfer will be subject to stamp duty unless the above exemptions or concessions apply.
The family member taking the share of the property may still be eligible for a transfer duty concession.
There are no other exemptions for gifting residential property to family members.
Different exemptions are available for transferring of property between divorcing or separating spouses or de facto couples. There are exemptions available for deaths of property owners.
Contact Legalease Lawyers on 0402 121 124 to guide you through the process.
