What Happens If Your FIRB Approval Is Not Ready at Settlement?
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Foreign Buyers · Settlement Deadlines · Contract Risk
The approval has not arrived, settlement is close, and the numbers online do not agree. Here is what the statutory decision period actually means, what your contract can still require, whether the date can move, and what happens to your deposit, finance and duty.
Quick Answer
FIRB delay does not automatically extend your settlement date. Do not settle or let the date pass until your solicitor has checked both the foreign investment law and your contract. A written no objection notification is not the only statutory timing event that can matter: under section 82 of the Foreign Acquisitions and Takeovers Act 1975, the action generally cannot be taken before the earliest applicable endpoint, including the notification being given, the end of an interim order period, or 10 days after the decision period ends. Your contract can still require something different before settlement, and your foreign status can also change the duty and cash required.
Also called: foreign investment approval · FIRB approval · no objection notification · Foreign Investment Review Board approval
What should you do first if your FIRB approval is not ready and settlement is close?
Call your solicitor or conveyancer first, today, and before the settlement date passes. That is the whole answer to the first question, and the order matters more than the speed. Your solicitor is the only person who can read your contract and tell you what the date actually obliges you to do, whether any condition in it is still available to you, and what notice you would have to give to rely on it. Nobody else in the chain can do that, and no general article can do it either.
Then tell your broker or your lender, in that order, and tell them early. A moved settlement date is a credit event on the lender's side, not an administrative one, and the difference between hearing about it three weeks out and hearing about it on the morning of settlement is usually the difference between a re-approval and a fresh application. If you want to know how a lender reads that conversation before you have it, the settlement clock on property-secured finance sets out which gates actually move a date.
Only then does the other side get told, and your solicitor should be the one telling them. Depending on the contract and jurisdiction, the next step may be a written variation agreed by both parties or the exercise of a contractual extension right that already exists in the signed contract. If neither route is available and the original date is held, the consequences run through the contract's default machinery.
The single most important thing to understand is that the contract sets the deadline, not the approval. The statutory decision period, any extension of it, and the regulator's own processing times all sit outside your contract of sale. None of them moves your settlement date. That is why the triage below is by time remaining on the contract, not by where your application sits in the queue. If the word settlement itself is doing unfamiliar work here, it means the day the balance is paid and title transfers.
Are you certain you actually need approval, and that you needed it before you signed?
Ask this before anything else, because a large share of the people reading this page did not know they needed approval until a conveyancer asked them a question a few weeks out from settlement. If that is you, your problem is not where your application sits in a queue. Your problem is that there is no application, and the first thing to establish is whether you are a foreign person for the purposes of the foreign investment rules and whether what you bought is caught by them.
Two things make this harder than it looks. The first is that the question is about status and structure, not nationality, and it is assessed by reference to the time the interest in the land was acquired rather than the time you noticed. The second is that the framework treats different kinds of land differently, so an answer you read about a house does not carry across to a warehouse or a farm. Both of those are legal questions and both are for your solicitor, working from the regulator's own residential land guidance rather than from a summary of it.
| How people get here | What to establish first |
|---|---|
| You did not realise your visa or residency status might make you a foreign person | Your solicitor should identify both your status and the point at which the acquisition became binding. Under section 15 of the Act, a genuinely conditional agreement can be treated differently from an unconditional one, so the signature date is not always the whole answer. |
| Your status changed between exchange and settlement | Whether that later change alters the approval position depends on when the interest was legally acquired and on the exemption or condition you rely on. Do not assume a later visa or residency change automatically rewrites an earlier acquisition. |
| You bought with an Australian citizen, permanent resident or eligible New Zealand citizen spouse | Current government guidance says the residential approval exemption applies where the foreign spouse purchases as a joint tenant with the exempt spouse. The spouse exemption does not extend to tenants in common, so the title structure matters. |
| You bought through a company, trust or self managed superannuation fund | Entity and trust rules can turn on ownership, control and beneficiary rights rather than the nationality of the person signing the contract. A family or discretionary trust can create a foreign-status problem through its deed even where the controllers and current family members are Australian. |
| You assumed commercial or agricultural land works like a house | What the land actually is. Residential land, commercial land and agricultural land sit under different parts of the framework with different requirements and different thresholds. |
This table is a prompt for the conversation with your solicitor, not a self-assessment test. The legal acquisition point, the title structure, the land type and the exemption relied on can all change the answer. For residential property, current government guidance expressly lists a joint-tenant spouse exemption, but the contract still needs to be read against your facts.
One more thing worth checking before you assume the problem is delay. If a notification has already been issued, read the document itself rather than treating it as a clean yes. Approval is given as a no objection notification, it can carry conditions, and it specifies a time limit for the action it covers to be taken. People occasionally discover that the instrument they were relying on does not say what they assumed it said, or that it will expire before the new settlement date they are about to agree to. For a buyer whose underlying question is really about status and borrowing rather than paperwork timing, the non-resident and foreign income borrowing guide owns that ground, and if the property is not residential at all then commercial property lending is a different conversation from this one.
Now triage, by what is left on the contract rather than by where the application sits.
| Time left before settlement | What is realistically available | Who you call, in this order |
|---|---|---|
| Several weeks | Enough time to identify the contract extension mechanism, ask for any required variation, check the section 82 timing, and give the lender room to refresh the file before a new date is locked in. | Solicitor, then broker or lender, then the other side through your solicitor. |
| A few days | Three questions become urgent: whether section 82 still prevents the acquisition, what your contract requires before settlement, and whether the lender can still complete if the legal constraint is cleared. | Solicitor first, then broker or lender. Contact the ATO as well if the residential application status itself needs clarification. |
| The date is today or tomorrow | Do not decide from an online countdown. The statutory period, any extension or excluded days, your contract condition and any contractual extension mechanism all need to be checked on the actual file. | Solicitor, now. Then broker or lender if completion is still legally available. |
| The date has already passed | The contract's default machinery is already running. What accrues, from when, and what the other side can now do are all set by your contract. | Solicitor, before you respond to anything from the other side. |
| You have already settled | If the acquisition breached the foreign investment law, the regulator encourages self-disclosure and retrospective approval may be available. Do not assume every settlement without a written letter was a breach: the section 82 timing and the contract must be checked first. | A solicitor, before you disclose anything to anybody. |
If you have weeks, the useful work is a variation agreed in writing and a lender who knows about it. If you have days and the funding rather than the approval is the binding constraint, the fast settlement finance guide and, where the gap is short and the exit is real, caveat lending cover the tools that move at that speed. Read the finance section further down before you assume money solves this, because on residential land it often does not.
Do not settle, and do not simply let the date go by, without advice. Both are decisions with legal consequences and both are commonly made by accident. Settling on an established dwelling without approval is a breach, dealt with further down this page. Letting the date pass hands the other side a set of rights. Neither is a waiting strategy. Under pressure, and usually late at night, people tend to arrive at one of four plans, and three of them make the position worse.
| The plan | What it actually does |
|---|---|
| Settle anyway and sort the approval out afterwards | If section 82 still prevents the acquisition, or your contract still requires approval before completion, settling is not a shortcut. A missing written notification is not by itself the whole legal test, which is why the statutory file and the contract both need to be checked before anyone settles. |
| Say nothing and hope the approval lands in time | Hands the other party a set of rights on the settlement date, and closes the only window in which a variation could have been agreed. Silence here is a decision, not a delay. |
| Assume the deposit is gone and walk away | Treats an open question as settled. Whether a deposit is at risk depends on your contract and on whether the clause's own obligations were met, and that is a document nobody writing about this online has read. |
| Ring the vendor first, agree a new date, then tell the lender | The most common sequencing mistake on these files. The new date gets set by the one party with no reason to consider your lender's process or the life of your approval, and by the time anyone else is asked the room to fix it has gone. |
Have these in front of you on the first call
- The contract of sale and the settlement date written in it
- The date the contract was signed or exchanged
- The date any application was lodged and evidence the fee was paid
- The notification itself, if one has been issued, including its conditions and its time limit
- Your visa or residency status as it stood on the date you signed
- The trust deed or company constitution, if you did not buy in your own name
Questions worth asking on that call
- Is there a condition in my contract still available to me, and what would I have to do to rely on it?
- Can my clause be satisfied by lapse of time as well as by a written approval?
- What does my contract say happens if the date passes?
- Can the date be varied, and what does the other side get in return?
- Has my status changed the duty payable, and when does that fall due?
- Does anything need to be disclosed, and if so by whom and when?
Four timing facts buyers commonly confuse
Do not add these figures together to predict your approval date. A statutory decision period, a section 82 waiting endpoint, a historical processing median and a policy end date are four different things. None extends your settlement contract automatically. General information only, not legal or financial advice.
Can you speed up FIRB approval if settlement is close?
There is no published residential fast-track that guarantees a decision before your settlement date. Residential real estate applications are handled by the Australian Taxation Office, and the government's current residential real estate guidance directs applicants who need help with an application to call the ATO on 1800 050 377. That contact can help you clarify the application, but it does not extend your contract and it is not a promise of an expedited outcome.
Before you call, check the boring things first because they are the ones that change the statutory clock: confirm the application was actually lodged, the correct fee was paid, the contact details are current, and any formal request for information has been answered completely. Under section 77 of the Act, days covered by a formal information notice are excluded from the decision period, so elapsed calendar time is not always elapsed statutory time.
The latest published residential processing statistic is a 15-day median for approved proposals in the January to March 2026 quarterly report. That is useful context, not a service level. Half of the approved matters in a median sample took longer, and the number says nothing about whether your own application is complete, extended or subject to an information request. The Government has announced a new 30-day performance target for low-risk applications from 1 January 2027, but that future target does not move a settlement due in 2026.
Ask the ATO about the application
- Has the residential application been received?
- Has the correct fee been paid and matched?
- Is anything outstanding on the file?
- Has a formal information request been issued?
- Where should your representative send any response?
Ask your solicitor about the settlement
- When did the agreement become binding for foreign investment purposes?
- What does the FIRB condition in this contract actually require?
- Has the section 82 endpoint been reached on the verified dates?
- What extension mechanism, if any, exists in this contract?
- What happens if the contractual date passes?
Do both conversations in parallel. Chasing the application without managing the contract leaves the settlement problem untouched, and the settlement clock on property-secured finance sets out which gates actually move a date. Negotiating a new settlement date without checking the lender can create a second deadline you cannot meet. The customer problem is not one late approval; it is three systems moving at once.
Does your contract have a subject to FIRB approval clause, and what does it actually do?
A subject to FIRB approval clause is not a generic safety net. It is a contractual condition whose exact wording decides what must happen before the agreement becomes binding or before a party can rely on the condition. Current Australian Government guidance on investment proposals tells a foreign investor who enters an agreement before a decision to ensure the contract is conditional on receiving a no objection notification or exemption certificate. The Legal Practitioners' Liability Committee also makes the general condition-precedent point: the buyer must comply with the steps and timing the clause actually imposes. That article concerns a finance condition, so it is used here only for the general contract mechanism, not as foreign investment advice.
So the first question is not simply whether the contract contains the words "subject to FIRB". It is when the agreement becomes binding, what event satisfies or ends the condition, who can rely on it, what notice must be given, and whether you did every required step on time. Applying late, paying the wrong fee, giving notice by the wrong method, or giving notice after the contractual deadline can each change the position while the clause is still sitting there on the page.
The second question is what your clause actually says, because the clause's own wording governs and no two are identical. There is no universal drafting here. A clause may require notice within a stated number of days of a stated event, or evidence of the outcome, or both. It may make the condition available to only one party. It may or may not say what happens to money already paid. And it may or may not be satisfiable by lapse of time as well as by a written approval, which is the point dealt with in the next section and the one most likely to change your position. Your solicitor reads the words; nothing else does.
The case the field does not serve well is the one where there is no clause at all, or the clause is there but its obligations were not met. That is the position a great many buyers are actually in, and it is materially different from the position the general explainers describe. If you are in it, you are not relying on a condition. You are negotiating, or you are inside the default machinery, and both are solicitor territory. The mechanics of a contract that has gone unconditional are set out in the auction and unconditional purchase guide, and the same discipline about deadlines written into a contract runs through the sunset clause guide.
One practical note on sequencing. The reason a date slips is very often not the approval at all but one of the ordinary gates described in the settlement timeline breakdown. Read your position honestly before you read the clause, and be clear about which of the two problems you actually have.
What a condition precedent typically asks of the buyer
- Apply within the time the clause states
- Pay the correct fee, in full
- Give notice in the form the contract requires
- Give that notice by the deadline, not after it
- Produce evidence of the outcome
What a condition precedent does not do on its own
- It does not extend the settlement date
- It does not oblige the other side to wait
- It does not operate if its own steps were missed
- It does not decide what happens to the deposit, the contract does
Can you settle before written FIRB approval arrives, or move the settlement date?
Do not treat "no written approval yet" as the whole legal test, and do not treat it as permission to settle. Under section 82 of the Foreign Acquisitions and Takeovers Act 1975, a notified action generally cannot be taken before the earliest applicable endpoint: 10 days after the decision period ends, the end of an interim order period, or the day a no objection notification is given. Separately, your contract may still require a written notification or another event before settlement. Whether the settlement date can move is also a contract and jurisdiction question: some contracts require an agreed written variation, while some standard forms contain their own limited extension mechanism. Your solicitor needs to check both layers before anyone completes or lets the date pass.
Does the decision period ending mean you can settle?
The ordinary decision period is 30 days, but the legal waiting question does not stop at day 30. Section 77 sets the decision period and allows it to be extended. It also excludes days covered by a formal information notice while the requested information or document is outstanding. Section 82 then says the notified action generally must not be taken before the earliest of three endpoints: 10 days after the decision period ends, the end of an interim order period, or the day a no objection notification is given.
The practical implication is narrower and more useful than "approval automatically happens after 40 days". It does not. A written no objection notification and the statutory permission to take the action are related but different concepts, and your contract can impose its own condition on top. If your contract says written notification is required, the contract can still stop settlement even where your solicitor concludes the statutory section 82 period has ended. If the contract uses lapse-of-time wording, the verified statutory dates become central. Work from the Foreign Acquisitions and Takeovers Act 1975, not a calendar calculation copied from a search result.
Three cautions matter. First, the fee must be paid before the notice is treated as given for the decision-period rules. Second, formal information requests can exclude days from the decision period, and the period can be extended. Third, the Act treats a conditional agreement differently where its acquisition provisions do not become binding until a condition is met. That means the date you signed, the date the fee cleared and the date a condition became binding can all be different dates. Ask your solicitor to identify the legal dates; do not create them by counting calendar days yourself.
The wider reframe is to stop treating this as one clock. The statutory clock belongs to the Commonwealth, the contract clock belongs to the sale agreement, the lender clock belongs to the credit provider, and the duty clock belongs to the state or territory. They can all move independently. A customer who asks only "when will FIRB arrive?" can still miss the deadline that actually causes the loss.
Do not add the statutory periods together and call the result a forecast. A Treasurer-issued section 77A extension can add up to 90 days in total, an interim order is a separate instrument, and formal information notices can exclude days from the decision period. By contrast, the often-repeated idea that a home loan approval "lasts three months" is not a statutory rule at all. The exact dates on your file matter more than any generic outer-limit arithmetic.
| Deadline or period | What sets it | Timing | Why it matters at settlement |
|---|---|---|---|
| Ordinary decision period | Foreign Acquisitions and Takeovers Act 1975, section 77 | 30 days after the relevant statutory event. A payable fee must be paid or waived before the notice is treated as given | It limits when the Treasurer can ordinarily make the relevant decision, but it is not itself your settlement date |
| Section 82 waiting endpoint | Foreign Acquisitions and Takeovers Act 1975, section 82 | The earliest applicable endpoint is 10 days after the decision period ends, the end of an interim-order period, or the day a no objection notification is given | This is the statutory question behind "can I take the action yet?". Your contract can still require a different event before completion |
| Formal information notice | Foreign Acquisitions and Takeovers Act 1975, section 77(7) | Days from the notice until compliant production of the requested information or document are excluded from the decision period | Calendar days elapsed can overstate how much of the statutory decision period has actually run |
| Treasurer extension | Foreign Acquisitions and Takeovers Act 1975, section 77A | May be made more than once, with Treasurer-issued extensions capped at 90 days in total | The apparent day-30 endpoint can move |
| Interim order | Foreign Acquisitions and Takeovers Act 1975, section 68 | Not more than 90 days from registration of the order | Creates a separate statutory endpoint that section 82 recognises |
| Time limit inside a no objection notification | The Act, regulations and the notification itself | The prescribed default is 12 months unless a longer period is specified. An application to extend the period must be made 2 months before it ends | A delayed settlement can outlive an approval that was valid when the original date was set |
| Settlement date and any extension right | Your contract and applicable state or territory law | Whatever the actual contract mechanism provides | The regulator's timetable does not automatically move this date |
| Finance approval and valuation | Your lender's policy and the file conditions | No Australian statute fixes a universal expiry period | A moved date can trigger refreshed income, commitments, conditions or valuation |
| Foreign purchaser duty | State or territory duties legislation | Runs from the relevant liability date under that jurisdiction, not from the Commonwealth FIRB clock | On a delayed settlement, duty can become payable on a different timetable from completion |
These periods do not form one countdown. The Commonwealth foreign investment rules, the sale contract, lender policy and state revenue law answer different questions. The safest settlement plan is built from the verified dates in all four systems, not from one online processing-time estimate.
There is no single Australian rule for extending settlement while FIRB is outstanding. The mechanism comes from the signed contract and the state or territory. In many transactions the parties document a written variation. In Queensland, standard REIQ residential contracts can contain a short unilateral Extension Notice mechanism. Either way, the new date should not be chosen until the solicitor has checked the contract and the broker or lender has checked whether the finance and valuation can survive to that date. Where the parties negotiate a later completion date, the broader concept is a deferred settlement.
| Jurisdiction | Do not assume | What your solicitor should check |
|---|---|---|
| New South Wales | Do not assume FIRB delay automatically moves completion. Under the 2022 standard form contract, time is not ordinarily of the essence for completion, and a valid notice to complete is the usual mechanism used to make time essential where a party is otherwise entitled to serve one. | The completion clause, any special conditions, whether a notice to complete can validly be served, and whether the parties should instead document an agreed variation. The Supreme Court of New South Wales explanation of notices to complete is a useful primary reference on the mechanism. |
| Victoria | Do not assume the seller has to grant more time because FIRB is outstanding. The settlement date is a term of the contract and a different period has to be supported by the contract or agreed between the parties. | The settlement term, special conditions, default and penalty-interest provisions, and the form of any agreed change. Consumer Affairs Victoria confirms that the settlement date is set in the contract and the period is negotiated between buyer and seller. |
| Queensland | Do not assume both parties must agree to every short extension. REIQ guidance on clause 6.2 explains that a valid Extension Notice is a unilateral contractual right, can be given without the other party agreeing, and cannot extend settlement beyond five business days after the scheduled settlement date under that mechanism. | Whether your signed contract is an REIQ form containing the extension clause, whether a special condition has amended or waived it, the notice deadline and form, and whether a longer agreed extension is needed. Read the REIQ guidance referencing the clause 6.2 extension. |
This comparison is deliberately about contract mechanics, not legal advice on your transaction. Standard forms can be amended by special condition, and the signed contract controls. FIRB timing does not replace the state contract analysis.
Why would the vendor agree to move the date, and why would they refuse?
A vendor agrees when moving the date costs them less than the alternative, and refuses when it costs them more. That is the whole calculation, and it is worth understanding before your solicitor makes the request, because it tells you what you are actually negotiating over and what you have to offer.
The things that usually sit behind the answer are the vendor's own onward purchase and the date attached to it, whether they are carrying two sets of holding costs while they wait, whether the market has moved since exchange in a way that makes ending the contract attractive rather than painful, and whether they are under a pressure of their own such as a deceased estate, a separation or a business sale. A vendor with a matching settlement of their own is often far more willing to move than one with nothing behind the deal, because a collapse costs them a chain. A vendor in a market that has risen since exchange has the opposite incentive, and no amount of goodwill changes that arithmetic.
What you generally have to offer is compensation for the delay rather than a favour, which is why the mechanics matter: what accrues, from when, and who carries it are set out in the penalty interest on late settlement guide. Going in with a proposal that already prices the vendor's cost is a materially different conversation from going in to ask for time.
If the date passes without completion, the other party may issue a notice to complete. This is a contractual instrument, not a court process. It is a formal demand that makes time of the essence from that point and sets a new deadline, after which the party that issued it may have the right to terminate and to pursue remedies. What it does not do is create a period you can plan around: the length and the form are governed by your contract and by the general law, courts read compliance with notice provisions strictly, and this page deliberately does not print a day count because the numbers circulating online are not a rule. Your solicitor tells you what yours says.
Where the obstruction is something on title rather than an approval, the shape of the problem is different again, and the guide to a third party caveat blocking settlement covers that case. If you want a second read on your specific sequence before you commit to anything, talk to a broker.
What happens to your deposit if the approval does not arrive?
Your deposit is not automatically safe and it is not automatically lost. The answer depends on the contract, whether the foreign investment condition is still unsatisfied under its wording, and whether you complied with every step required to rely on it. The statutory section 82 position and the contractual condition can also diverge: the law may no longer prohibit the action while the contract still requires a written notification, or the contract may contain lapse-of-time wording that makes the verified statutory dates decisive.
Two phrases are carrying almost all the weight in those answers, and both should be treated as conditions rather than reassurances. The first is properly worded. That does not mean the clause exists; it means the clause is drafted so that this outcome, in these circumstances, releases you and deals with money already paid. The second is through no fault of your own. That is not a description of bad luck. It usually means you did everything the clause required, when it required it, in the form it required, and can evidence that you did. A clause that was never triggered because a notice was late is not a clause that failed through no fault of the buyer.
Australian law also recognises relief against forfeiture of a deposit as a concept, and courts have granted it. It is not a general safety valve, the thresholds are high and fact specific, and whether it is even arguable on your facts is a question for a solicitor rather than a broker. It is named here so that a reader who has been told flatly that a deposit is simply lost knows the position is more textured than that, and so that nobody reads this page as advice that it is available.
What happens to your FIRB fee and approval if the purchase falls over?
Do not budget on getting the application fee back just because the property purchase fails. Current government fees guidance says waivers and remissions are considered case by case, and the detailed guidance generally does not treat an unsuccessful investment, a change of mind or a withdrawn application as enough on its own. Residential property is also excluded from the competitive-bid refund and credit regime.
If the contract dies and you find another property, do not assume the approval simply travels with you. The Australian Taxation Office says substantial changes to a residential approval require a new residential application rather than a variation. A failed purchase can therefore leave you solving three separate losses: the contractual deposit question, the sunk or non-refundable regulatory fee question, and the cost and timing of a new application for the replacement property.
There is one tax point worth knowing about and routing out immediately. Where a deposit is retained on a terminated contract, the retained amount can carry a goods and services tax consequence, and that consequence sits with the vendor, not with the buyer. It is mentioned because it sometimes shapes how the other side behaves in the negotiation. It is a matter for a registered tax agent, and the guide to unpaid goods and services tax and Australian Taxation Office debt at settlement covers the adjacent ground where a tax liability is the thing blocking a settlement.
The other half of this question is often not legal at all. Where the real problem is that the money will not be there on the day, the deposit conversation is a distraction from the funding one. The settlement shortfall breakdown sets out how a gap actually gets closed, the fast settlement finance guide covers the tools that move at contract speed, and the commercial property deposit explainer deals with how much is typically at stake and why. The mechanics of the security itself are in the caveat loan glossary entry.
This page will not tell you either way, and no page can. Anyone who assures you of an outcome on a deposit without having read your contract is guessing, and the stakes here are too high for a guess dressed up as an answer. Take the document to a solicitor.
What happens to your loan approval, your valuation, and the cash you need at settlement?
Yes. A FIRB delay can cause a lender to reassess an otherwise approved home loan. There is no Australian statutory rule that makes every loan approval or valuation expire after the same number of days. Depending on the lender, the approval conditions and how far settlement moves, the lender may ask for updated payslips or business income evidence, recent bank statements, refreshed liabilities and living expenses, another credit check, confirmation of employment or trading position, an updated valuation, replacement loan documents or a fresh credit decision.
For a salaried borrower, the refresh may be as simple as current payslips, transaction statements and confirmation that the employment position has not changed. For a self-employed borrower or business owner, aged evidence can be the slower part of the file: a lender may ask for newer business bank statements, BAS, management accounts, tax returns or other evidence permitted by its policy. The security can also be looked at again, and a fresh valuation may be ordered because the valuation on file was an opinion at a date that has now moved. The valuation shortfall at settlement guide covers what happens when that fresh number comes back lower than the first.
A longer settlement can therefore change borrowing capacity in either direction, and the direction is not predictable from where you are standing. Rates move, policy moves, your own position moves. The point is not that a delay is fatal. It is that a delay converts a settled question into an open one, and open questions take time that a compressed settlement window does not have. The end of financial year settlement walkthrough shows how that compression behaves when a hard date is involved.
Which is why the lender should hear from you early rather than on the date. An underwriter told three weeks out has room to re-verify inside the existing approval. An underwriter told on the morning is being asked to make a credit decision at the worst possible moment, and the honest answer at that point is often that there is not enough time.
Can you borrow the money and settle on time instead?
Money does not override either section 82 or your contract. If the statutory waiting period still prevents the acquisition, or the contract still requires a condition to be satisfied before completion, a faster loan does not fix the legal constraint. Funding only becomes the answer after the solicitor has confirmed that settlement itself is legally and contractually available.
Where speed genuinely is the answer is the case in which the approval is not the binding constraint at all. That covers a property that is not caught, an approval already in hand where the ordinary finance has slipped, a variation already agreed where the new date is tight, or a shortfall between what the lender will advance and what the contract requires. In those cases the tools that price for speed rather than for cost are caveat loans and private lending, with the structural differences set out in the private lending glossary entry and the caveat loans pillar.
There is an honest limitation to name here as well. Short-term funders assess and price on the certainty of the exit above almost everything else, and while an approval is outstanding the exit becomes conditional on somebody else's decision. That is what makes these files harder to place than an ordinary settlement rescue, and a broker who tells you otherwise before seeing the file is selling rather than advising.
Does being a foreign person change the cash you need on settlement day?
Often, but the amount and even the definition of a foreign purchaser are state or territory questions. FIRB is Commonwealth law. Foreign purchaser duty and land tax surcharges are separate revenue regimes, and a person or entity can be treated differently under those regimes. A late discovery can therefore change the cash required at completion even after the Commonwealth approval question is understood.
The important part for a delayed settlement is when it falls due, because it does not run off your settlement date. Duty runs off the liability date set by the duties legislation of the state or territory the property is in. In New South Wales, for example, the guidance published by Revenue NSW for individuals states that where a purchaser is a foreign person at the liability date, transfer duty and surcharge purchaser duty must be paid within three months from the liability date. On a settlement that has been pushed out, that can mean duty falling due before you complete. It also runs the other way: the same guidance describes reassessment and refund provisions where there has been a change in foreign status, or in the proportions being acquired by a foreign person, between the liability date and settlement, with a refund only able to be considered once settlement has occurred. You can read the New South Wales surcharge purchaser duty guidance yourself.
Rates, thresholds, exemptions and the treatment where one buyer is a foreign person and another is not are all set by each state or territory revenue office, and they differ. That is why no figure appears here, and why the position in one jurisdiction cannot be read across to another. The application fee for the approval itself is separate again and is set by the Commonwealth.
The practical consequence is a finance one rather than a legal one, and it is the reason this belongs in the finance section. A status discovery usually increases the cash required at completion, which means the funding number your broker and lender have been working to is no longer the right number. Tell them as soon as you know, not once the adjustment statement lands, because a shortfall found three weeks out has options that a shortfall found on the morning does not. How a gap of that kind actually gets closed is in the settlement shortfall breakdown. The duty question itself is one for your solicitor and a registered tax agent, and you can check your eligibility once you know what the real completion figure is.
What if your permanent residency or visa status changes before settlement?
Tell your solicitor and broker immediately, because Commonwealth FIRB status and state foreign-purchaser duty are separate tests. Current Australian Government residential guidance says holders of Australian permanent residency visas do not need a residential real estate application. That does not mean a visa granted after signing automatically erases an approval issue that arose earlier: your solicitor still has to identify when the interest was acquired for foreign investment purposes and which exemption, if any, applies to that acquisition.
State duty can produce a different answer again. In New South Wales, Revenue NSW says a person can qualify for a surcharge purchaser duty reassessment or refund where foreign status changes between the liability date and settlement. For the published individual refund route, the person must no longer be foreign at settlement and the applicable residence test must be satisfied; in New South Wales, Revenue NSW gives an example of a student-visa holder receiving permanent residency shortly before settlement and later obtaining a surcharge refund after meeting the residence requirement. Read the current New South Wales surcharge refund guidance.
Victoria illustrates why the same immigration event cannot simply be copied across states. The State Revenue Office says foreign purchaser status is generally tested when the property is acquired, usually at settlement, and asks permanent residents to evidence that they held an Australian permanent visa at that time. A visa application or a provisional visa is not the same thing as holding permanent residency. The current Victorian status guidance sets out the evidence it expects.
The practical rule is not "PR fixes FIRB" or "PR removes the surcharge". It is: identify the Commonwealth acquisition date, identify the state duty test and date, then update the lender's completion figure if the duty changes. That is why the same visa grant can solve one part of the transaction, leave another part untouched, and change the amount of cash needed at settlement.
How can an Australian family trust be a foreign purchaser?
By who can benefit under the deed, not by who actually does. This is one of the most common ways an Australian buyer finds out late that they are caught, and it lands hardest on business owners, because buying through a family or discretionary trust is ordinary practice rather than an exotic structure.
The Legal Practitioners' Liability Committee sets the mechanism out for Victoria: the rule in section 3B(2) of the Duties Act 2000 is applied strictly to all discretionary trusts, and foreign purchaser additional duty will generally apply to a transaction by the trustee of a standard discretionary or family trust if there is at least one foreign capital beneficiary. A standard deed drafted to allow distributions to a broad class can be enough to produce that result even where every family member is Australian and no foreign person has ever received a distribution. The Committee also notes that the revenue office accepts that amendments to a trust deed excluding foreign beneficiaries can prevent the duty arising, provided the amendments are validly effected before the relevant dutiable transaction occurs. You can read the Committee's article on foreign purchaser additional duty for discretionary trusts in full.
New South Wales demonstrates why this should never be read as a Victoria-only drafting quirk. Revenue NSW states that a discretionary trust can be treated as foreign unless no beneficiary or potential beneficiary is foreign and the deed cannot later be amended to make a foreign person a potential beneficiary. The exact test is jurisdiction-specific, but the customer lesson is consistent: the deed can change the settlement cash even when the people currently receiving distributions are Australian. The current New South Wales trust guidance sets out those rules.
Two things follow, and the timing point is the sharp one. An amendment made after the dutiable transaction has occurred is generally too late, which is why this is a question to ask before exchange rather than after a settlement has already slipped. And the same underlying idea reaches beyond duty: an entity can be a foreign person for foreign investment purposes on the basis of the interests held in it, so a trust or company issue can produce both problems at once rather than one.
This ground is genuinely litigated rather than theoretical. In New South Wales, Revenue NSW publishes its own summaries of tribunal decisions on foreign surcharge and discretionary trusts, including Fujun Pty Ltd ATF Ni Family Trust v Chief Commissioner of State Revenue, and its Commissioner's practice note and revenue ruling on the topic sit alongside them. Those are the primary materials to put in front of your solicitor.
| The question | What actually decides it |
|---|---|
| Who is a beneficiary today | Not the test on its own. The published position turns on who is capable of benefiting under the deed, not on who has actually received anything. |
| How the deed defines the beneficiary class | The heart of it. A broad class drafted to include relatives or persons anywhere in the world can bring a foreign capital beneficiary into existence on paper. |
| Whether the deed can be amended | An exclusion of foreign beneficiaries can prevent the duty arising, but only where it is validly effected before the relevant dutiable transaction occurs. |
| When you found out | The decisive variable. Before exchange there are options. After the dutiable transaction there are generally fewer, and the question becomes assessment, objection and advice. |
| Which state the land is in | Each jurisdiction has its own duties legislation, its own definitions and its own rulings, so a position in one state does not carry across to another. |
This is a summary of a published mechanism, not advice on your deed. Trust structuring and deed amendments are legal and tax work, and getting the timing wrong is what creates the liability rather than fixes it. Take the deed to a solicitor.
The decisive point, and the reason the clock table above matters more than almost anything else on this page, is that these are four different kinds of clock and they are routinely confused. A statutory period is fixed by legislation and administered by a regulator. Your settlement date is a private contractual obligation. Your finance approval is a lender's internal policy position with no statutory basis at all. Duty belongs to a state or territory government and runs off a liability date of its own. A reader who takes a lender's convention for a statutory period, or who assumes the regulator's timetable protects a contract date, or who assumes duty waits for settlement, is going to make an expensive planning error. The wider lane sits in the property lending hub.
What are the penalties, and why does every source give a different number?
The maximum criminal penalty for acquiring an interest in residential land without the required approval is imprisonment for ten years, or fifteen thousand penalty units, or both, with the unit figure multiplied tenfold where the person is a corporation. That is the answer, and it comes from the regulator's current residential compliance guidance note, version 4, dated March 2025. The published figures disagree with each other because the regulator still serves several superseded generations of its own guidance, which is dealt with below. This page states that exposure in years and in penalty units only and never converts it to dollars, because the value of a penalty unit is set separately, indexed periodically, and any dollar figure printed here would be wrong on a schedule nobody reading this can see. You can read the current guidance note for yourself.
The civil side is a formula rather than a number. The maximum civil penalty is expressed as the greatest of a multiple of the capital gain made or that would be made on disposal, a proportion of the consideration, and the same proportion of the market value of the land. Alongside that sit infringement notices in tiers, scaled by the value of the land, with a distinctly lower tier available where the investor self-discloses the breach. That concession is the single most useful fact on this page for anyone who has already settled, and it is dealt with in the next section.
Two further points of exposure, stated as exposure and not as advice. Officers of a corporation can be reached, and third parties who knowingly assist a breach face the same maxima. That second limb is not abstract for anyone advising on one of these transactions, and it is part of why this page carries no figures of its own.
Now the mechanism, which is the part nobody else sets out. The reason you will find four different penalty answers in four search results is not that the sources are careless. It is that the regulator serves multiple live generations of its own guidance, on more than one domain, without always marking the retired ones as retired. An archived residential penalties note from 2017 still returns a live page carrying lower maximums. Superseded versions of the residential land guidance still resolve. A law firm article from 2016 remains indexed and remains cited. Each of those was correct on the day it was written.
The problem is broader than penalties, and this is worth knowing before you trust anything you read on this topic, including a chatbot answer. Multiple generations of the regulator's guidance notes are simultaneously retrievable, and so is the Act itself. Several separate guidance notes each resolve at more than one file path across the current and the retired regulator domains, and the Foreign Acquisitions and Takeovers Act 1975 is served in numerous point-in-time compilations. An automated system reading that library has no reliable way to tell which version is in force, which is precisely how superseded figures end up in confident summaries.
The clearest live illustration is the established dwelling ban. The regulator's own residential land guidance states that from 1 April 2025 to 30 June 2029, foreign investors are generally prohibited from purchasing established dwellings. Another live page on the same framework still carries the original end date of 31 March 2027, which was the position before the ban was extended. Both pages are live and they give different end dates for the same ban. The Australian Taxation Office's own residential application page resolves it, noting that the government extended a ban which had been due to end on 31 March 2027. The lesson is not that the regulator is unreliable. It is that you must check the date and the version on the page you are reading, every time.
For readers whose exposure is on the development side rather than the residential side, the foreign-owned developer funding guide covers approval conditions on a project, and the non-resident borrowing guide covers the borrower-side assessment. Where the liability blocking your settlement is a tax debt rather than an approval, the unpaid goods and services tax guide is the right page. The wider commercial lane sits in the business owners finance hub.
| What is published | Where it comes from | Its date | Status on 4 September 2026 |
|---|---|---|---|
| A dollar maximum and a three year term | An archived residential penalties guidance note, still served on the regulator's retired domain | 2017 | Superseded. Still returns a live page |
| A different, larger dollar maximum | A law firm article | February 2016 | Superseded. Still indexed and still cited |
| Ten years, or a maximum expressed in penalty units | The residential compliance guidance note, version 4, which is the penalties document | March 2025 | Current |
| Two different end dates for the same established dwelling ban | Two different live pages on the regulator's own site | July 2026 and March 2025 | Both live. They disagree |
| Three versions of the residential land guidance note, a different document from the compliance note above | The regulator's own file paths | March 2025 to July 2026 | Only version 5, dated July 2026, is current. The earlier versions still return live pages |
| Multiple generations of several other guidance notes, and many point-in-time versions of the Act | The regulator's current and retired domains, and the Federal Register of Legislation | Various | All retrievable at once. Nothing in the retrieval marks which is in force |
Two separate documents are easy to confuse: the residential compliance note carries the penalties and is at version 4, and the residential land note carries the scope and the ban dates and is at version 5. This table deliberately omits the dollar figures it describes, because reprinting them would repeat the exact error the page exists to expose. What matters is the date and the version on the page you are reading, not the number it happens to carry.
Who publishes guidance for a buyer in this position?
We went looking for an Australian body that publishes buyer-facing guidance on what to do when the settlement date arrives and the approval has not, and we did not find one. What we searched for and did not find, on 4 September 2026, was any page from the foreign investment regulator, Treasury, the Australian Taxation Office, a state revenue office, Consumer Affairs Victoria, a state law society or the Australian Institute of Conveyancers that addresses that specific moment. Each of those bodies publishes competently on its own half of the problem. None joins them. The Consumer Affairs Victoria settlement page is the sharpest example: it covers the settlement process itself, price, title, possession and duty, and does not cover settlement failure, penalty interest or a notice to complete at all.
| Body | What it publishes | What it does not publish |
|---|---|---|
| The foreign investment regulator and Treasury | How to apply, fees, timing, conditions, and what happens if you breach | Anything on what to do when the settlement date arrives and the approval has not |
| The Australian Taxation Office | Application and registration for foreign investors | Nothing on what to do when the settlement date arrives and the approval has not |
| State revenue offices | Duty, including foreign purchaser duty, surcharge liability dates and land tax surcharges | Nothing on approval timing at settlement, or on how the duty clock interacts with a delayed one |
| Consumer Affairs Victoria | The settlement process: price, title, possession and duty | Does not cover settlement failure, penalty interest or a notice to complete at all |
| State law societies and the Australian Institute of Conveyancers | Practice materials for practitioners | No public buyer-facing guidance located on this question |
What if you have already settled without approval?
If the acquisition breached the foreign investment law, current regulator guidance strongly encourages self-disclosure. Lower penalties may apply where a breach is self-reported. The word is may, not will, and self-disclosure is not an amnesty. Before assuming that settlement without a written no objection notification was itself the breach, have a solicitor check the section 82 dates, whether notice was required and given, and when the acquisition became binding.
On retrospective approval, the regulator's own current wording is that a foreign person who has breached the law by acquiring an interest in residential land without prior approval may apply for retrospective approval of that acquisition. That is the pathway, and it is genuinely open. Set alongside it, however, is the harder wording in the same body of guidance about established dwellings, which are subject to the general prohibition described above. The two statements are consistent, but they are differently worded and they are commonly quoted separately. An application may be made; on an established dwelling it is assessed against the ban policy, and a great many summaries omit that qualification entirely. Read both, not one.
Do not assume the acquisition is invisible. The regulator's residential compliance guidance says the Australian Taxation Office uses comprehensive data matching systems to identify residential-land breaches, supported by information from other regulatory regimes and government regulators. That is why a suspected breach should be handled as a legal and compliance problem rather than as paperwork that may never surface.
There are also obligations that continue after settlement, and they catch people who assume completion is the end of the process. A no objection notification can carry conditions, the Act contains post-action notification requirements, and residential owners may have Register of Foreign Ownership and vacancy-fee obligations depending on the property and how it is used. Completion does not necessarily close the Commonwealth or state revenue file.
Go to a solicitor now, before you disclose anything. A self-disclosure is a formal communication with a regulator about a breach, made by a person whose exposure includes criminal maxima. It should be prepared with advice, not typed into a form on a Sunday night. This page does not tell you whether retrospective approval will be granted or refused on your facts, because nobody can, and it does not give you a reduced penalty figure to plan around, because none exists in a form worth planning around. What it does say is that delay is the one variable clearly working against you.
What happens after you lawfully settle with FIRB approval?
Keep the approval and settlement file open long enough to complete the post-acquisition obligations. Current residential land guidance says foreign owners must notify the Register of Foreign Ownership of Australian Assets when they buy or sell residential land. Conditions in the no objection notification also continue according to their own terms, and an annual vacancy fee can apply where a dwelling is not residentially occupied or genuinely available for rent for at least 183 days in a vacancy year.
That creates a second checklist after the crisis is over: retain the no objection notification and settlement evidence, complete any required Register notification, diarise approval conditions, check the state revenue position, and tell the lender if any ownership or use condition changes. The successful customer journey does not end at settlement; it moves from "can I complete?" to "what do I have to report and keep doing?"
Where the aftermath is financial rather than regulatory, the adjacent pages are the unpaid goods and services tax and tax debt at settlement guide and, where ownership itself is being unwound, the guide to property settlements involving commercial assets. If your ongoing position is a borrowing question, the non-resident and foreign income borrowing guide is the right starting point. If you want to talk the sequence through with someone before you speak to anyone else, start a conversation.
From our broking, indicative
A note from our own broking on cross-border settlement files, indicative and qualitative only, as at September 2026.
- When a settlement date moves, the request that comes back from a lender is almost never a single document. It is a refresh of the whole evidence set: current income evidence, current commitments, confirmation the trading position has not changed, and very often a fresh valuation.
- The documents that go missing most often on cross-border files are the ones nobody owns: certified identification that has not expired, evidence of the source of the deposit in a form an Australian credit team can follow, and a clean translation where the underlying record is not in English.
- What makes a settlement rescue facility harder to place while an approval is outstanding is not the approval itself. It is that the exit becomes conditional on someone else's decision, and short-term funders price and assess on the certainty of the exit above almost everything else.
- A surprising share of these files reach us not as late approvals but as late discoveries, where the buyer learned only weeks out that they were caught by the rules at all. Those files carry two problems rather than one, because the duty position usually changes with the status and the completion figure moves with it.
- Trust-held purchases are over-represented among the late discoveries we see, which is unsurprising given how ordinary a family trust is for a business owner. The deed is rarely the first document anyone thinks to read.
- The most common sequencing mistake is telling the vendor before telling the lender. By the time the lender is asked, the new date has already been agreed with the party who had no reason to consider the lender's process, and the room to fix it has gone.
Indicative only, drawn from files we have placed, and stated qualitatively on purpose. We publish no figure of our own in this area: third parties who knowingly assist a breach face the same maximum penalties as the buyer, and this page's whole argument is that the numbers already circulating on this topic are unreliable. Adding another figure to that pile would not help you. This is not a quote and not an offer, actual outcomes depend on lender policy and your circumstances at the time of application. Not financial advice.
The mistake to avoid is treating FIRB delay as one countdown. The Commonwealth decision period, the section 82 waiting endpoint, your sale contract, your lender's approval and valuation, and state foreign purchaser duty all answer different questions. A written no objection notification can arrive before the statutory waiting period would otherwise end, but the contract can still demand its own event before settlement. If settlement must move, the contract decides how. If it moves, the lender may reopen the file and the duty clock may not move with it. If you have already acquired in breach, current regulator guidance encourages self-disclosure and retrospective approval may be available. If you complete lawfully, Register, approval-condition and vacancy-fee obligations can continue after settlement.
Key takeaway: verify the statutory dates, read the contract, tell the lender before fixing a new date, and do not assume settlement ends the compliance job.Frequently Asked Questions
The end of the 30-day decision period is not the same thing as an automatic approval. Section 82 generally prevents the notified action before the earliest applicable endpoint: 10 days after the decision period ends, the end of an interim-order period, or the day a no objection notification is given. The decision period can also be extended, and days covered by a formal information notice are excluded. Your solicitor should verify the actual statutory dates before you rely on lapse of time.
Do not treat a missing written no objection notification as either automatic permission or an automatic prohibition. Under section 82, the statutory permission to take the notified action depends on the earliest applicable endpoint, including the notification, the end of an interim-order period, or 10 days after the decision period ends. Your contract can still require written approval or another event before settlement, so both the Act and the contract must be checked before completion.
There is no published residential fast-track that guarantees a decision before settlement. Residential real estate applications are handled by the Australian Taxation Office, and current government guidance directs applicants who need help to call the ATO on 1800 050 377. Confirm the application, fee and any information request, but do not treat an enquiry as an extension of the contract or a promise of an earlier decision.
There is no automatic Australia-wide extension just because FIRB is outstanding. The mechanism depends on your contract and jurisdiction. In Queensland, for example, standard REIQ residential contracts can contain a clause allowing a valid Extension Notice to move settlement by up to five business days without the other party agreeing, unless the signed contract has amended that right. New South Wales and Victoria use different contract and default machinery. Your solicitor should identify the actual route in your signed contract, and your broker or lender should confirm the finance can survive to the proposed new date before it is fixed.
If you enter a contract before the foreign investment decision, current Australian Government guidance says the agreement should be conditional on receiving a no objection notification or exemption certificate. The wording matters because a condition can decide when the agreement becomes binding, what event satisfies it, who can rely on it and what notice is required. This is drafting and contract advice for your solicitor before you sign.
Not automatically. The outcome depends on the contract, the wording of the FIRB condition and whether you complied with every step required to rely on it. A clause can fail to protect a buyer if its notice, timing or application requirements were not met. Relief against forfeiture exists in Australian law but is fact specific and is a solicitor question, not something an online guide can promise.
A notice to complete is a formal contractual notice used after a completion failure in transactions where the contract and law permit it. It can set a new deadline and make time of the essence, after which termination or other remedies may become available. Its form, timing and effect depend on the contract and jurisdiction, so do not plan around a generic online day count.
Where a Victorian contract provides for default or penalty interest, the contract governs the trigger, rate and calculation. It commonly accrues on the unpaid balance for the period of delay, but there is no single rate that this page can safely state for every transaction. Your conveyancer or solicitor should calculate it from the signed contract and the actual delayed period.
Possibly. There is no Australian statutory rule that makes every home loan approval or valuation expire after the same number of days. A moved settlement can cause the lender to request updated payslips or business income evidence, bank statements, refreshed liabilities and expenses, another credit check, confirmation of employment or trading position, an updated valuation, replacement loan documents or a fresh credit decision. Tell the lender or broker before agreeing a new settlement date so the new contract date is built around the real credit process.
The due date comes from the duties law of the state or territory, not from the Commonwealth FIRB timetable. On a delayed settlement the revenue deadline can therefore move differently from completion or can fall due before it. A change in visa or permanent-residency status can also affect the state surcharge position without producing the same answer under every state regime. In New South Wales, for example, Revenue NSW has reassessment and refund rules where a purchaser is no longer foreign at settlement and the published residence requirements are met. Confirm the amount, status test and due date with the relevant revenue office, your solicitor and a registered tax agent.
Yes. A no objection notification must specify a period within which the approved action is to be taken. The prescribed default period is 12 months unless a longer period is specified, and the Act allows an application to extend the period if it is made at least 2 months before the period ends. Read the notification you actually hold because its conditions and dates control your approval.
If you acquired residential land in breach of the foreign investment law, current regulator guidance says you may apply for retrospective approval and strongly encourages self-disclosure. Lower penalties may apply to self-reported breaches, but retrospective approval is not automatic and an established dwelling is assessed against the policy applying at the time of the retrospective application. Get legal advice before making the disclosure or application.
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