Property held in someone else's name: rights, risks and evidence
Reviewed by Justin Chua, principal, Chua Tan Associates · Updated 18 October 2026
If you paid for a property but it is registered in someone else’s name, Australian law may treat that person as holding it on trust for you. But where a parent buys in a child’s name, the law may presume a gift, and the outcome depends on evidence of what was intended at the time. These arrangements can also create serious stamp duty, land tax and foreign investment problems.
Why these arrangements happen
We regularly see property held for someone else (代持房产) where:
- parents in China buy an apartment in the name of a child in Australia;
- a relative here holds property for family overseas;
- a friend is on title because the real buyer could not get a loan or approval.
Disputes start when the registered owner separates, dies, becomes bankrupt, refuses to sell or claims the property was a gift.
Purchase money resulting trusts
The starting point in Australian equity is that if you pay for property put in another person’s name, a resulting trust is presumed: the registered owner holds it for you in proportion to what you paid. The presumption can be displaced by evidence that a gift or a loan was intended. In [Bosanac v Commissioner of Taxation [2022] HCA 34](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2022/34.html), the High Court confirmed that these presumptions remain part of Australian law, but stressed that the real question is the intention of the person who paid, judged from all the evidence.
The presumption of advancement: parents and children
Where a parent pays for property in a child’s name, the law presumes the opposite: that a gift (an “advancement”) was intended. The High Court has said this presumption is now weak and can be rebutted by evidence, but the parent must produce that evidence. It applies to mothers as well as fathers.
In [Nelson v Nelson [1995] HCA 25](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1995/25.html), a mother bought a house in the names of her son and daughter so that she could later obtain a subsidised government housing loan. When it was sold, the daughter refused to hand over her share. The High Court held the presumption rebutted and the proceeds held on trust for the mother, but required her to repay the subsidy benefit as a condition. Using a nominee to obtain a benefit can cost you even when you win.
In [Koprivnjak v Koprivnjak [2023] NSWCA 2](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2023/2.html), a father paid the deposit on his daughter’s investment property and later paid renovation and mortgage costs. The only document from the time of purchase was a mortgage describing the deposit as a loan. The Court of Appeal held he had not rebutted the presumption: he was a lender, not a beneficial owner. Evidence created after the purchase carried little weight.
In [Metzner v Metzner [2021] NSWSC 1336](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2021/1336.html), parents bought a property in their daughter’s name and later fell out with her. The court found they had not rebutted the presumption of advancement, although it recognised that the parents had a life interest. A short written agreement at the time could have avoided the dispute.
Common intention constructive trusts
Separately from who paid, a court may find a constructive trust where the parties had a shared understanding that the property would be owned in a certain way and one party relied on it, so that it would be unconscionable for the registered owner to deny it. These claims depend heavily on evidence of what was said and done, and when.
Evidence: what actually decides these cases
Courts look for objective evidence from the time of purchase. Useful material includes:
- bank transfer records showing who paid the deposit, stamp duty and settlement funds, including transfers from overseas;
- mortgage documents, loan applications and who is liable on the loan;
- WeChat, WhatsApp or email messages discussing the arrangement;
- who paid the rates, insurance and outgoings, and who received the rent.
WeChat messages are often central. Keep the original device and full chat history, not only screenshots, because authenticity may be challenged and translations will be needed.
Foreign buyer duty, land tax and FIRB: a serious risk
Where the real buyer is a foreign person, putting the property in the name of an Australian citizen or resident does not avoid foreign buyer rules. Revenue offices and the Australian Taxation Office look at who holds the beneficial interest.
In general terms:
- in Victoria, foreign purchaser additional duty (currently 8% of the price for residential land) is payable on top of ordinary duty, and an absentee owner land tax surcharge (currently 4% of land value each year) can apply;
- in New South Wales, surcharge purchaser duty (currently 9%) and surcharge land tax (currently 5%) apply to foreign persons;
- under the Foreign Acquisitions and Takeovers Act 1975 (Cth), foreign persons generally need approval to acquire interests in residential land, and a temporary ban on foreign persons buying established dwellings applies from 1 April 2025 to 31 March 2027.
A nominee arrangement can expose both the real buyer and the registered owner to back-dated duty and tax, interest, penalties and, for foreign investment breaches, orders to sell. Proving a trust later can itself trigger duty. Obtain legal and tax advice before acting, and never create documents after the event.
Protecting your interest with a caveat
If you claim an interest in land, you can lodge a caveat at Land Use Victoria to stop dealings with the title without notice to you. A caveat must be based on a genuine interest. If the owner obtains a lapsing notice, you generally have a short period (in Victoria, usually 30 days) to start court proceedings or the caveat lapses. A person who lodges or keeps a caveat without reasonable cause can be ordered to pay compensation. NSW has a similar system with a shorter lapsing period of 21 days.
Time limits and costs
Claims to recover trust property held by a trustee are often not subject to a fixed limitation period in Victoria, but related claims, such as to repay a loan, generally must be brought within six years. Delay can also defeat equitable relief and allow the property to be sold or mortgaged.
In the Supreme or County Court, costs usually follow the event: the losing party often pays a substantial part of the winner’s costs, as well as their own. That risk makes early assessment of the evidence, and attempts to settle, especially important.
How we help
Chua Tan Associates acts in these matters in English, Mandarin and Cantonese. Where both sides are willing, a private resolution can be arranged through the Chinese Australian Dispute Resolution Centre (CADRC). Contact us on +61 3 9602 3988.
FAQs
My parents paid for the apartment in my name. Is it mine?
Possibly. The law presumes a gift from parent to child, but that can be rebutted by evidence that your parents intended to keep ownership or to be repaid.
I paid for a property in my friend’s name. Can I get it back?
If you paid the price and there is no evidence of a gift, the law presumes your friend holds it on trust for you. You will need to prove the payments and the arrangement.
Are WeChat messages accepted as evidence?
Yes, they are commonly used, but the other side may challenge their authenticity or translation. Preserve the original phone and complete chat history.
Can a nominee arrangement avoid foreign buyer stamp duty?
No. Duty and tax laws look at the beneficial owner, and such arrangements can lead to back-dated duty, penalties and foreign investment consequences. Get advice before acting.
How do I stop the registered owner selling?
You may be able to lodge a caveat if you have a genuine interest, and seek an urgent injunction if a sale is imminent.
Who pays the legal costs?
In court, the losing party is usually ordered to pay part of the winner’s costs, so it is worth trying to resolve these disputes early.
Talk to us about your matter
Book a confidential consultation in English, Mandarin or Cantonese, or call +61 3 9602 3988.
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General information only, not legal advice. Every matter turns on its own facts. Reviewed by Justin Chua, principal, Chua Tan Associates.
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