Commercial Property FIRB Approval
Do non-residents need government approval to buy commercial real estate?
Every year, foreign investors arrive in droves to take advantage of Australia’s strong economy and robust commercial real estate market.
However, investing Down Under also means playing by the Australian government rules.
No matter whether you’re living outside of Australia or you’re a temporary resident, certain foreign investors may require approval with the Foreign Investment Review Board (FIRB) before they can buy a commercial property. Do you?
FIRB: What you need to know
Australia’s foreign investment framework was introduced to protect its national interests, that’s why FIRB approval may be required when buying a commercial property.
Of course, this all depends on whether the land is vacant or developed, the value of the purchase and whether the property is considered to be a “sensitive” commercial acquisition.
Do all non-residents need government approval?
No, not all non-residents wanting to invest in Australia need FIRB approval.
Only foreign investors and temporary residents may be required to notify FIRB, as set out in the Foreign Acquisitions and Takeovers Act 1975.
Commercial property buyers who definitely won’t need approval are:
- Australian citizens.
- Australian expats.
- New Zealand citizens.
- Permanent residents (PR).
Yes, that’s right, expats, NZ citizens and PRs don’t need commercial property FIRB approval!
If you fall into this category and you need a loan to buy a commercial property, give us a call on 1300 889 743 or complete our free assessment form to speak with one of our specialist mortgage brokers.
For foreign investors and temporary residents, it doesn’t necessarily mean you need to notify FIRB of your purchase!
What are the rules and exceptions?
Developed commercial land
The Foreign Investment Review Board (FIRB) sets out certain “monetary thresholds” that determine whether you need to notify the board of your proposed acquisition:
For so-called “developed commercial land” or non-vacant land, you’re only required to notify FIRB if the value of the purchase is $252 million or higher. The threshold is $55 million for so-called ‘sensitive developed commercial land’.
This doesn’t apply to foreign government investors, that is, investors acting on behalf of foreign governments.
Vacant commercial land
Government approval is needed no matter the value of the land.
In most cases, FIRB will accept your application if development commences within 5 years of the date of approval and you do not sell the land until construction is complete.
Mining, production and exploration
Government approval is needed no matter the value of the land.
In the past few years, a number of nations have signed up to Australia’s Free Trade Agreement (FTA).
A few of these nations are actually eligible to buy or acquire an interest valued at $1,094 million before they need to notify FIRB.
This isn’t a cumulative figure either: FIRB will only assess your application based on your current proposed acquisition and won’t take into account an interest you may already have in other commercial properties and businesses.
The only exception to this is agricultural land, vacant land, and land being acquired by foreign government investors.
These countries are:
- New Zealand
- The United States.
- South Korea
ou can actually apply for an exemption to buy multiple commercial property or parcels of land via an upfront approval with FIRB rather than having to make separate applications.
This doesn’t apply to land defined as sensitive.
Check out this page for more information.
How does FIRB define commercial real estate?
Commercial property not only includes land with a building on it but it also includes vacant land or real estate on the seabed of an offshore area (such as retail businesses and function centres located on marinas).
It doesn’t include:
- Land used exclusively for primary production business (farmland, fisheries or land used for agribusiness).
- Land on which less than 10 dwellings could be built.
- Land on which there is a residential dwelling (unless it is classed as a residential commercial property.
Commercial residential properties
The following premises are examples of commercial residential real estate and fall under the reporting rules and requirement of developed commercial land:
- Hotels, motels and boarding houses.
- School student accommodation (does not include accommodation offered to students by educational institutions like universities and academies.
- Marina with berths for ships used as homes.
- Caravan parks.
- Units in a services apartment.
When does commercial become residential?
Solely purchased as an investment, buying dwellings in a serviced apartment is considered to meet the same FIRB requirements as buying developed commercial land.
However, purchasing a unit as an owner-occupier or to privately rent out during certain times of the year would be considered an acquisition of residential land and require you to meet different FIRB requirements.
This can actually work in your favour because you may qualify for a residential home loan instead of a commercial loan which may give you opportunity to borrow at a much higher Loan to Value Ratio (LVR) and cheaper residential interest rates.
Properties located in a retirement village or an aged care facility are classed as residential land under FIRB’s definition.
You may also be prohibited from buying the property as a foreign investor unless you intend to also live in the property.
However, this doesn’t apply where the owner of the business is a foreigner and the acquisition of the dwelling is a buyback or lease back arrangement. In this case, the land would be considered developed commercial land.
Complete our free assessment form if you’re a foreign investor looking to buy an aged care facility.
Although B&Bs are usually custom-built for commercial purposes, owners often live on the premises with their guests by way of separate rooms and shared facilities.
Because of this, FIRB approval will be determined on a case by case basis, depending on the size and value of the residential component of the land.
As a general rule, B&Bs will be considered to be developed commercial land if the proportion of the land that is residential real estate (and used for residential purposes) is less than 10% of the total area and less than 10% of the total value of the land.
If not, it will be considered as residential land.
The definition of residential land will also apply to foreign buyers intending to convert a standard residential property into a B&B or guesthouse.
Complete our free assessment form if you’re a foreign investor looking to buy a bed and breakfast.
You may qualify for residential interest rates, saving you thousands!
Can land be considered both commercial and residential?
FIRB will consider the purchase of a retail building with an attached residential dwelling on a single title as both residential land (the attached dwelling) and a commercial property (the actual business premises).
When it comes to mixed use property like this, FIRB will review the application on a case by case basis.
In most cases, it will usually fall under the definition of residential land.
What is considered to be sensitive commercial real estate?
Commercial property that is involved in any of the following activities that are considered to be sensitive Australia’s national interests will need to notify FIRB of their proposed acquisition if the value of acquisition is $55 million or more.
This monetary threshold doesn’t apply to investors from certain FTA partner countries (the higher $1,094 million threshold applies to these investors):
- The land is to be leased to the Commonwealth, a State, or a Territory body.
- The land will be used for bulk storage, the supply of military goods, equipment or technology to the ADF or other defence forces.
- The storage and production of encryption, security and communications systems and technologies.
- Mining, oil and gas operations (particularly uranium or plutonium exploration) or the operation of nuclear facilities.
- Storage or disposal of biological material flagged by the National Health Safety Act 2007.
- Properties located under airspace
- Land on which servers for banks, lenders, the stock exchange and other major financial institutions will be stored.
- Land on which public infrastructure such as an airport, a port, electricity and gas facilities and water and sewerage treatment operations will be located.
How much are FIRB application fees?
- Developed commercial land: $25,000
- Vacant commercial land: $10,000
- Land used for mining, production, and exploration: $25,000 or $10,000 if you’re a foreign government investor and want to acquire at least 10% in the business.
Sometimes foreign investors notify FIRB of a commercial property they intend to purchase by mistake.
Unfortunately, if you find that you weren’t required to notify the board, you will still be charged a fee for having to review the application.
In some cases, Treasury may waive or remit whole or part of your fee if they are satisfied that your commercial purchase isn’t against Australia’s national interests.
However, you won’t be refunded the fee if your FIRB application is declined.
Do you need a commercial property loan?
You’ll find that unless you’re buying a large commercial property or intending to make multiple acquisitions, you won’t need to go through FIRB at all!