A contract of sale is understandably important and is at the centre of the property purchase or sale process. It lists the relevant details of the buyer and seller, terms and conditions and inclusions. The types of terms and conditions present in a contract differ between existing dwellings and dwellings yet to be constructed (off-the-plan) are different.
Until recently, most contracts of sale for off-the-plan dwellings contained a time cap on how long the developer could take to complete the development. If the developer was unable to complete the dwelling and register the plan of subdivision within the agreed time frame or by a specified date, both buyer and the developer were at liberty to terminate the contract of sale unilaterally. The estimated time was commonly referred as “sunset period” and the provision in the contract of sale permitting rescission of contract was referred as “sunset clause”.
There were concerns about the developer intentionally delaying the development and rescinding the contract at the end of sunset period. If the contract of sale is rescinded by invoking the sunset clause, the deposit is refunded to the buyer. No further compensation is payable. As a result the purchaser may have spent many years waiting for settlement to no avail. On the other hand, the developer can make gains by re-selling the dwelling at higher price
The Victorian Government has made various provisions under the Sale of Land Amendment Act 2019 (the Act) to remove the ability of developers to exploit buyers by intentionally delaying residential development projects. The provisions discussed below are only in relation to residential off-the-plan contracts.
Under the Act:
Under the Act, popularly used terms are now properly defined. Broadly:
The provisions on sunset clauses under the Act are made applicable effective 23 August 2018. Therefore, regardless of when the contract was signed, from 23 August 2018 a sunset clause must be exercised in accordance with the new laws.
The Sale of Land Amendment Act 2019 (Vic) is now in operation. The requirements under the new law prevents developers from deliberately postponing the completion of construction work and using an existing sunset clause to end the contract with an intention to make gains by re-selling the property at a higher price.
Written by Brad Mayberry