The Treasury has released the final Competition and Consumer (Notification of Acquisitions) Determination 2025 (Instrument) setting out the exemptions to the mandatory merger clearance regime. Following considerable feedback from the real estate industry, the Government has provided welcome clarity about which transactions will not need to be notified to the ACCC. The upshot is that fewer real estate deals should be caught than what was proposed under the previous draft of the Instrument, published in March 2025.
We discussed the Instrument generally in our recent KWM Insight: Answering (Some of) the Threshold Questions: Treasury Releases updated ACCC Clearance Regime Instrument. The Instrument contains the key details around notification thresholds, form requirements and filing fees that will apply to the new ACCC clearance regime – which will be mandatory from 1 January 2026.
This Insight focuses on the specific exemptions for the real estate industry, which will cover many of the sector’s day-to-day transactions.
Real estate transactions exempt from the ACCC notification requirements
The Instrument provides much needed clarity with respect to many common real estate transactions – these types of transactions will not need to be notified to the ACCC.
These common types of real estate transactions are:
1. Land acquisitions: acquisitions of legal or equitable interests in land (including vacant and developed land) where the acquisition is for the following purposes:
- developing residential premises, or
- carrying on a business primarily engaged in buying, selling, leasing or developing land – other than relating to operating a commercial business on the land that is not ancillary to the primary purpose (i.e., buying, selling, leasing or developing the land).
This exemption recognises that property developers and investors acquire land as their stock-in-trade or for land leasing or development purposes. These scenarios are different to land acquisitions where the land serves as a platform or location for operating other commercial activities (which will be required to be notified if the notification thresholds are met). The wording in the final Instrument also recognises that some investors (such as shopping centre owners or build-to-rent investors) operate ancillary business alongside their primary leasing business.
2. Acquisitions of interests in land entities: acquisitions of an interest in an entity where:
- the entity’s only non-cash asset is a legal or equitable interest in land, and
- the entity’s holding of that land is for the purposes of developing residential premises or carrying on a business primarily engaged in buying, selling, leasing or developing land.
This exemption covers acquisitions of interests in entities (including shares as well as units in unit trusts) that only hold land assets. It is intended to ensure that indirect acquisitions of land through entity structures are treated consistently with direct acquisitions of land (covered by exemption 1 above). Land entities holding other incidental assets, such as cash for working capital in bank accounts or receivables, will still be able to come within this exemption.
3. Extensions or renewals of leases over land: acquisitions of legal or equitable interests in land if they are an extension or renewal of a lease for the land.
This exemption covers the continued occupation of land by a tenant and includes:
- entering a new lease over the same land (following expiry of the previous lease term),
- exercising a contractual option to renew a lease,
- arrangements effected through a renewal deed or similar instrument, or
- other common leasing practices where continued occupation by the tenant is achieved, i.e. through surrender and regrant of the lease.
The exemption will not apply where the leased land is new or has been expanded, or where there is a new tenant.
4. Acquisitions of an interest in land previously notified: acquisitions of legal or equitable interests in land if:
- the acquirer previously acquired an equitable interest in the land,
- the previous acquisition was notified to the ACCC,
- the same acquirer then acquired the subsequent interest in the land,
- the size of the land to which the two interests relate is materially the same, and
- the proportion of the ownership interest in the land to which the two interests relate are the same.
This exemption is intended to avoid multiple notifications to the ACCC in respect of a single land acquisition, but which occurs over numerous stages. For example, if an entity enters into an agreement for lease, which is notifiable:
- The entry into the agreement for lease (involving the acquisition of an equitable interest in the land) will be notified to the ACCC.
- If clearance is obtained to the agreement for lease, the subsequent entry into the lease (involving the acquisition of a legal interest in the land) will not need to be separately notified to the ACCC.
5. Acquisitions of land development rights: acquisitions of legal or equitable interests in land in the form of land development rights.
Land development rights include rights to develop or redevelop land, including rights to construct, refurbish, expand or subdivide existing land or buildings. These rights, which typically arise under government schemes, or project development agreements, are commonly used by landowners or property developers to facilitate the making of improvements to land or buildings without transferring any freehold title in the land.
6. Acquisitions of land relating to sale and leaseback arrangements: acquisitions of legal or equitable interests in land if it relates only to a sale and leaseback arrangement relating to the land.
This exemption covers sale and leaseback arrangements that are typically used for financing or capital management purposes where the economic control remains unchanged despite the transfer of legal title. The leaseback component of the transaction is exempt.
What if the transaction does not come within one of the real estate exemptions?
From 1 January 2026, parties to transactions will need to notify the ACCC of proposed acquisitions where the acquisition:
- involves the acquisition of shares (including units in a unit trust) or assets,
- the shares or assets are connected with Australia,
- at least one of the monetary thresholds is met, and
- a relevant exemption does not apply.
If a transaction does not need to be notified, does this mean an ACCC clearance is not necessary?
Whether a transaction is a ‘notifiable acquisition’ (i.e., because it meets the notification thresholds) is separate to the question of whether it gives rise to any substantive competition concerns, which would cause the ACCC to want to know about it and consider it.
Practically, this means that even acquisitions that are not notifiable to the ACCC (i.e., because one of the monetary thresholds is not triggered, or an exemption applies) will still need to be assessed on a case-by-case basis as to whether the transaction gives rise to competition concerns.
For transactions not required to be notified to the ACCC, but which raise competition concerns, the ACCC will continue to have the power to seek to prevent merger parties from completing any alleged anticompetitive transactions, or to seek to undo any completed transactions the ACCC believes are anticompetitive (as well as seek penalties against the parties to the transaction).
