Transferring property to a family member in South Australia

The price you agree with your family is usually irrelevant. RevenueSA assesses duty on the greater of what was paid and what the land is worth, so selling the family home to your daughter for $1 produces the same bill as selling to a stranger at full price.

Real exemptions do exist here. They are narrower than their reputation, and the South Australian list is not the Victorian list.

Duty is charged on value, not the price you write down

All transfers of residential and primary production land attract duty on the value of the land including improvements, or the consideration including GST, whichever is greater, unless an exemption or concession applies. A gift, a transfer for $1 and a generous family price are assessed the same way.

Here is the cost. A $750,000 house transferred to an adult child: under the conveyance scale, duty above $500,000 is $21,330 plus $5.50 for every $100 or part of $100 over that, so the $250,000 above the threshold adds $13,750, giving $35,080.

South Australia runs one scale, with no gentler owner-occupier rate underneath it. First home buyer relief will not rescue a transfer like this either. That relief is limited to a new home, an off-the-plan apartment or vacant land to build on, and RevenueSA states plainly that it is not available on the purchase of an established home. Our guide to South Australian stamp duty works through the full scale.

Start with what kind of land it is

Since 1 July 2018, no liability to duty arises on a conveyance of an interest in non-residential and non-primary-production land, which RevenueSA calls qualifying land. Commercial, industrial, institutional and recreation land sit in that category.

So if the family asset is a shop, a warehouse or an office suite, a transfer to a relative attracts no conveyance duty at all. You do not need an exemption, because there is no liability to exempt. Only residential and primary production land remains dutiable.

Vacant land is where people get this wrong. An empty block is not automatically qualifying land. RevenueSA treats vacant land as residential where the zoning envisages residential use, and the Commissioner generally relies on the land use code the Valuer-General has assigned to the land. A bare suburban block gifted to a child is usually dutiable.

Spouses and domestic partners: the shared residence exemption

Section 71CB of the Stamp Duties Act 1923 is the exemption most families are reaching for. RevenueSA's guide to section 71CB covers a transfer of an interest in the shared residence between spouses or domestic partners, or the last shared residence between former partners after the relationship has irretrievably broken down. It applies whether or not anything is paid.

Shared residence means the principal place of residence of which both or either of you is owner, or for former partners the last such residence either of you owned.

Domestic partner is defined. You qualify if you are in a registered relationship under the Relationships Register Act 2016, if you have lived together in a close personal relationship continuously for the three years before the transfer or for at least three years within the preceding four, or if you are both the parents of a child.

A section 71CB statutory declaration is required. The exemption does not stretch to an investment property neither of you has lived in, and the definition of shared residence excludes premises forming part of industrial or commercial premises. If the land is also used for primary production, the transfer cannot be self-determined. It goes to the Commissioner for assessment, with separate values for the house and curtilage and for the remaining area.

One detail works in your favour. In RevenueSA's own example a couple hold title jointly with their adult daughter, and a transfer of the husband's share to the wife is still exempt, because it happened solely between the spouses. Victoria handles that differently, so if you have read our Victorian article on family transfers, do not assume the conditions carry across.

If you have separated

Which exemption fits depends on how the split was documented.

Section 71CB itself covers the last shared residence where the relationship has irretrievably broken down, supported by a statutory declaration saying so. That is the simplest path where the home is the only asset moving. Section 71CBA is the route for former domestic partners who cohabited continuously for at least three years, where the transfer follows a certified domestic partnership agreement or a property adjustment order.

Section 71CA is the family law route. The guide exempts a document giving effect to a Family Law agreement or order where a marriage has been dissolved or annulled, or the Commissioner is satisfied a marriage or de facto relationship has broken down irretrievably. It must dispose of property between the parties and no one else, apart from a superannuation fund trustee.

Deciding who gets what is family law, not conveyancing. See a family lawyer first.

Parent to child, and every other family gift

There is no general family exemption in South Australia. RevenueSA publishes the full list of conveyance of land exemptions that can be self-determined, and nothing on it covers a parent gifting a house to a child, a grandparent to a grandchild, or one sibling to another.

"It's a family transfer, so there's no stamp duty" is the most expensive sentence anyone will say to you about this. Some genuine exceptions do exist.

The family farm, section 71CC. RevenueSA's family farm guide requires the land to be used wholly or mainly for primary production and to be at least 0.8 hectares, primary production to be the transferor's sole or principal business immediately before the transfer document, and a business relationship regarding that land to have existed between transferor and transferee for at least 12 months immediately before it. That last condition catches families who hand the farm over quickly, so raise it years ahead. Relatives run from parent and child through to aunt or uncle to niece or nephew, which works one way only.

A deceased estate. Section 71(5)(h) exempts a conveyance to the executor or administrator, and to beneficiaries under the will or the laws of intestacy. The guide is equally clear that a sale by the executor to a beneficiary is liable to duty, so where three siblings inherit and one buys out the other two, duty is payable on the shares bought. Nothing is payable where a joint tenancy passes by survivorship.

Changing how you hold it. Moving from joint tenants to tenants in common, or back, is not chargeable provided the ownership shares do not change.

If any transferee is a foreign person, a foreign ownership surcharge of 7% of the value of the interest in residential land applies on top of the duty.

What RevenueSA accepts as evidence of value

Because you are related, your price is not taken at face value. Information Circular 102 says the Commissioner will not accept the value submitted for a non-arm's length transfer, including between related persons, unless it is supported by satisfactory evidence of value.

Now the part that saves South Australian families money. The Commissioner is prepared to accept the Valuer-General's Capital Value for the relevant financial year, which is the figure on your council rates notice. In RevenueSA's own example, two siblings transfer land and a rates notice showing a capital value of $500,000 is accepted.

The Victorian position is the reverse. The State Revenue Office says rating values rarely provide an acceptable value for duty purposes. Do not carry that assumption across the border in either direction.

The circular sets out when the Capital Value will not be accepted:

Situation	Why it fails
Improvements made after the value was assigned	The figure predates the work
A share of a parent title's value used for subdivided land	Not a value of the allotment being transferred
A notional value under s 22A of the Valuation of Land Act 1971	A concessional value that may not reflect highest and best use
Capital Value above $5 million	Outside the accepted range

A valuation, if you need one, must cover the market value of the whole of the land including anything fixed to it, be made within 120 days of the conveyance, and set out the instructions given to the valuer. A GST-exclusive valuation will not do, and neither will a finance valuation, because that identifies a safe lending value rather than market value. Everything you submit goes to the Valuer-General for review and is satisfactory only if the Valuer-General agrees.

Settle the value before you commit. It sets the duty, so it sets the cost.

The questions we cannot answer for you

We are registered in South Australia with Consumer and Business Services under the Conveyancers Act 1994 (SA), and licensed in Victoria. Our office is Office 4, Level 1, 105A High Street, Cranbourne, Victoria, and we act on South Australian matters electronically from there. That works because the Registrar-General has mandated electronic lodgement of the main dealings since 3 August 2020. Nobody needs to stand in a room in Adelaide for your transfer to settle.

One quirk worth knowing while you choose who to use: legal practitioners do not need to register as conveyancers here. Registration applies to conveyancers, and solicitors sit outside it. We compare the two in our conveyancer and solicitor article.

What sits outside conveyancing work:

• Capital gains tax. A transfer can trigger a CGT event even where nobody pays a cent. Whether it does turns on how long the property was held and who lived in it. Ask your accountant before you decide.
• Structuring a transfer to reduce duty or tax. A property lawyer or tax adviser.
• Wills, probate, estate planning, trusts and self managed super funds. A solicitor or your accountant. If the plan is really about what happens when someone dies, a transfer now may not be the right tool.
• Pension and Centrelink consequences of gifting. Services Australia or a financial adviser, before the transfer.

Knowing where that line sits is part of the job, not us passing you around.

How a South Australian family transfer runs

1. Identify what the land is. Residential, primary production, or qualifying land. This decides whether duty is in the picture at all.
2. Work out which exemption applies, and confirm the conditions are genuinely met rather than nearly met.
3. Settle the value, checking the Capital Value on the current rates notice before paying for a valuation.
4. Prepare the transfer and any statutory declaration, and get the lender's consent. That is a credit decision and usually the slowest step.
5. Determine the duty, lodge the transfer with Land Services SA through the electronic workspace, then notify council, SA Water and RevenueSA.

Our ownership transfers page covers the work itself.

Common questions

Do we pay stamp duty if we give the house to our son for nothing?

Yes, in almost every case. Duty is assessed on market value, not on what your son pays you, so a gift is treated the same as a sale at full price. South Australia has no parent to child exemption outside the family farm rules.

Can I transfer a half share of our home to my partner without paying duty?

If it is your shared residence and you are spouses or domestic partners as defined, section 71CB exempts the transfer whether or not anything is paid. You will need a section 71CB statutory declaration. The exemption does not reach an investment property neither of you lives in.

My father wants to transfer the farm to me. Is that automatically exempt?

No, and the condition people miss is the business relationship. Section 71CC needs one over that land for at least 12 months before the transfer document, plus the 0.8 hectare minimum and the sole or principal business test. Raise it with us early, because it cannot be fixed at the last minute.

Talk it through before anyone signs

Family transfers go wrong when the decision gets made at a kitchen table and the duty assessment turns up months later. Sorting it out beforehand is almost always cheaper than fixing it afterwards.

Tell us what you are trying to do and which state the land is in. We will tell you straight whether an exemption fits, and whether you need an accountant or a solicitor in the room first. Ask us for a quote or just get in touch.

This article is general information about South Australian conveyancing and is not legal advice for your particular transaction. Speak to us about your specific circumstances.