Credit: SMH.com.auThe tightening of restrictions on foreign investment in Australian real estate has not only dampened buyer interest, but also left agents confused and wary.
TALK to any of the estate agents working in Toorak, Camberwell, Kew and Hawthorn and they will tell you that overseas interest in suburban Australian property has declined.
No doubt there are many reasons for this, but the one that most say has had the greatest impact is the announcement by federal Assistant Treasurer Nick Sherry on April 24 that temporary residents are now required to seek Foreign Investment Review Board approval to acquire residential real estate in Australia.
The announcement also foreshadowed tough new civil penalties for non-compliance, including sanctions for vendors, purchasers, and agents involved in breaches of the act. As a result, it is not only prospective overseas purchasers who have had to review their position. Estate agents are also concerned about the prospect of sanctions in the event that they are accused of breaching the new laws. Until the detail of the proposed new regulations is disclosed, those concerns will continue unabated.
At the time of Senator Sherry's announcement, many complained that the decision to restrict foreign investment in Australian real estate was a hasty response to growing public sentiment against what was perceived to be a flood of overseas purchasers. The fact that it took several weeks following the announcement for the new policy to be published on the review board's website, and that details of the proposed sanctions are yet to be disclosed, would add some credibility to this view.
The recent changes revive the situation that prevailed until late 2008 when many of the restrictions on the right of foreign investment in Australian real estate were relaxed.
The most significant of these changes gave temporary residents the right to buy established dwellings for use as a principal place of residence without seeking board approval. As a result of the April changes, they must now first seek this approval. If applicants are eligible for approval under the new policy, the acquisition will be approved subject to legally binding conditions that will differ according to the type of real estate being bought.
Certain acquisitions continue not to require board approval, including the purchase of property by Australian citizens living abroad, and the purchase of new dwellings from a developer, where the developer has board pre-approval to sell those dwellings to non-residents.
The changes have produced inconsistent results. For example, a non-resident or an Australian permanent resident married to an Australian citizen acquires an interest in property when they purchase as joint tenants. However, the non-resident spouse of an Australian permanent resident acquires no interest even if the purchase is proposed to be as joint tenants.
The restriction on the right of a non-resident spouse to acquire an interest in property seems to fly in the face of family law principles, which, in the absence of any contrary agreement by the parties to the marriage, would ordinarily recognise a spouse's interest in property in the event of the breakdown of the relationship.
Curiously, the review board exempts from approval the acquisition of an interest by operation of law - such as a court order regarding the division of property in a divorce settlement. Therefore a non-resident who separates from her permanent resident spouse and takes proceedings in the Family Court stands in a stronger position than one who remains married. There does not seem to be any logic to this approach and were it to be challenged there would be good grounds for believing that it could not be sustained.
As stated earlier, the holders of a temporary residence visa may acquire established dwellings for use as their principal place of residence, subject to board approval.
Care needs to be taken in determining whether the visa a person holds grants temporary residence. Herein lies the problem for estate agents and is one reason they are worried about the prospect of sanctions. First, the board policy contains a very brief and unclear definition of the term. Most agents know that student visas and what are known as 457 visas are temporary residence visas, but in a regime that has more than 130 different visas, it may be difficult to know which ones grant residence and which do not. For example, not all people on a 457 visa fall within the definition as some of these visas are issued for periods of stay of less than 12 months, which is the trigger date contained within the definition. Agents are quite rightly concerned that these are not issues that they are trained to deal with, or may not be qualified to give advice on.
The problem is further compounded with many visas, including the 457 temporary residence visa for holders of passports from designated countries, being issued electronically. No amount of looking at a passport will give any insight as to the class of visa that the holder has, or the rights that attach to it.
With these issues in mind, agents are justifiably concerned at the prospect of being caught up in enforcement proceedings no matter what due diligence they employ. For this reason, many are no longer pursuing the lucrative overseas market at least until the new regulations are published and there is more clarity about their obligations.
David Stratton is an immigration law specialist at Nevett Ford.
Credit: SMH.com.au








