Sunset clause

It&#39;s often written about in the media when talking about off the plan property - but what actually is a sunset clause?

Essentially, a&nbsp;sunset clause is a condition included in some contracts of sale&nbsp;to protect the buyer and seller. It effectively puts a time limit on the contract&rsquo;s validity.

Use of the sunset clause is open to the buyer or the seller, and either party can choose to invoke the clause if the expiry date has passed. If settlement has not taken place by the end date included in the contract, both parties are legally entitled to walk away and the buyer would receive their deposit back in full.

While sunset clauses may exist to offer security and protection for buyers when purchasing off-the-plan, they don&rsquo;t always pan out this way and can sometimes be manipulated, which is why being aware whether it is in your contract of purchase is crucial.

Buyers can get their money back should construction timelines blow out further than what was forecasted by the developer as per the contract.

However, while not frequent, but a much publicised practice, is developers pulling apartments back from buyers if they go over the agreed upon construction timeline. The allowance of this has seen developers drag their feet in the construction phase, so they can take the apartments back and re-sell them at a higher price than initially sold if the market has grown during construction.

That then unfortunately&nbsp;leaves the buyer without a leg to stand on. They will get their deposit back that they initially paid, and begin the hunt again, in a market where prices are potentially, 10, 20, or even 30 per cent higher than what they thought they were buying in to years earlier.

<h2>The breakdown</h2>

A sunset clause is generally used in one of two situations in off-the-plan developments.

Firstly, it is routinely included in off-the-plan property exchanges. In this context, the clause stipulates the date by which the developer must finish the project and that if it is not finished by the proposed date, the buyer is legally&nbsp;entitled to walk away from the contract and receive their deposit back in full.

Most of the time however, developments are finished well in advance of the outlined date, as developers often exaggerate the required timeframe to allow for delays.

Another time a sunset clause is often used is when a buyer makes a purchase conditional on the sale of their current home. The sunset clause is normally included here to protect the vendor, if the buyer fails to sell their current home within the timeframe outlined. In this context, a sunset clause protects the seller by offering them a way back onto the market, should the buyer take too long.

There are, however, cases where invoking the clause may be more difficult for one party than the other.

Legislation has been passed in some states to make it more onerous for building developers to invoke the sunset clause. In October 2015, the New South Wales Government legislated that a developer would require written consent from either the buyer or the Supreme Court if they wished to terminate the contract if the project was delayed. These changes have been made due to instances of some developers stalling projects when property prices skyrocket, backing out of contracts to then put the development back on the market at a higher price. The Victorian Government followed suit in 2018, preventing developers from using sunset clauses to intentionally delay building projects with the aim of exploiting buyers.

It is possible for two parties to come to a mutual agreement to extend the terms of a sunset clause.

<h2>Urban&#39;s advice</h2>

Be fully aware if there is a sunset clause in your contract. This should be discussed with your solicitor when signing the contract, and be aware of the construction date agreed upon in the contract.

As with all off the plan apartment development purchases, check the developers track record. It will be well covered if the developers has previously evoked a sunset clause and left previous buyers without their apartments.

While often as a buyer you will deal with the agent in charge of the sales, don&#39;t be afraid to call the developer if that puts your mind at east. They should have a website for the development with contact details.

At Urban we attempt to track every developer across Australia, and keep their track record on our site so buyers can see whether they have delivered previous projects.

Essentially, a sunset clause is a condition included in some contracts of sale to protect the buyer and seller. It effectively puts a time limit on the contract’s validity


alisonwarters@gmail.com

What is a sunset clause in off-the-plan developments?

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When buying a property – be it a detached dwelling or an <a href="https://www.urban.com.au/developments">off-the-plan</a> apartment, it’s essential to make sure you have your legal documents drawn up correctly. Which is why getting legal advice early in the process is so important. 

Here’s what a sound off-the-plan contract should include: 

<h2>A reasonable cooling-off period</h2>

The cooling-off period affords the buyer time to change their mind. Once this period ends, the buyer is legally bound to buy the property. 

In NSW, new legal protections (which came into effect in December 2019) give buyers a 10-business day cooling-off period. This period is longer than the usual five business days for most properties. Buyers who change their mind will forfeit 0.25% of the purchase price. The cooling-off period can be waived or shortened, but only if the buyer’s lawyer or <a href="https://www.urban.com.au/guides/a-new-step-by-step-home-buyer-checklist-for-2020--post-covid-19">conveyancer</a> provides a certificate to prove the buyer understands the consequences of varying the cooling-off period. This helps protect the buyer from exploitation. 

Make sure the cooling-off period in your contract is reasonable and in line with the legislation in your state. If the seller asks to shorten or waive it, give this a serious consideration first and talk to your lawyer or conveyancer about whether this is a good idea. 

<h2>The disclosure of key information by the developer</h2>

Your off-the-plan contract must include <a href="https://www.urban.com.au/news/everything-you-need-to-know-about-australias-25000-homebuilder-grant">key information about the project</a> such as proposed plans and specifications, a floor plan, a detailed list of fixtures and finishes, sunset clause dates, other conditional events, and draft by-laws.

Before signing the contract, ensure you have a thorough understanding of the plans and are satisfied with the level of disclosure. Make sure you have asked questions if you’re confused about anything listed in the plans. 

Remember that developers will almost always have a right to alter their plans, within reason, to complete the project. Make sure your conveyancer reviews the contract to make sure enough information has been disclosed and that only reasonable alterations are permitted. 

<h2>The ability to withdraw or be compensated if significant alterations take place</h2>

While the contract will require the property to be constructed in accordance with what is disclosed in the contract, developers usually have the right to alter things in certain circumstances. Those changes must be delivered at the same quality and must not materially prejudice the buyer. 

To mitigate the risk of the <a href="https://www.urban.com.au/news/why-is-design-important-is-bigger-better-a-developers-perspective">developer making alterations</a> which substantially change the quality of the project and disadvantage the buyer, the contract should be very clear on warranties and inclusions. It should also give the buyer the right to withdraw and have the deposit returned to them or claim compensation. 

In NSW, for contracts entered into from 1 December 2019, vendors must notify purchasers of changes outside of what was disclosed, and which will adversely affect the use or enjoyment of the lot being purchased. Make sure you seek legal advice on the rules in your state. 

<h2>Other things to consider:</h2>

Building/apartment defects 

Other parts of the contract that require <a href="https://www.urban.com.au/guides">close review</a> include how defects are treated. Ideally, it will be up to the developer to remedy defects prior to settlement. Your lawyer and conveyancer should review your contract to make sure you are protected. 

Deposits

You should also have a look at the rules in your state on who holds your <a href="https://www.urban.com.au/news/build-your-deposits-to-grow-a-large-investment-portfolio">deposit</a>. In NSW, for example, deposits are held by the stakeholder (usually the real estate agent) and that money cannot be released to the developer before settlement. That protects the buyer in the event the developer becomes insolvent. 

Sunset clauses 

A <a href="https://www.urban.com.au/guides">sunset clause</a> provides a deadline whereby if the property has not been completed in time then the potential buyer’s deposit is refunded, and the contract is cancelled. The problem is that the clause has been exploited by developers who were delaying completion of projects in order to cancel contracts and re-sell properties at a higher price in a rising market. 

In NSW, new legislation has been introduced which requires that developers seek the buyers’ consent before ending contracts using the sunset clause. Alternatively, the developer will need to apply to the NSW Supreme Court to justify terminating the contracts. Seek advice from your lawyer or conveyancer on the sunset clause in your contract and the rules in your state. 

For both property investors and potential new homeowners, the <a href="https://www.urban.com.au/guides">concept of buying off-the-plan</a> is enticing due to its affordability and flexibility compared to buying an already existing property. However, it is important that you take all these considerations into account and seek legal/conveyancing advice before you sign the contract of your future home or investment property. 

Want to learn more about off-the-plan contracts? Leave a comment below.
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vivian_48447

Sign with confidence: How to ensure you have a sound off-the-plan contract

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<a href="https://www.premier.vic.gov.au/new-laws-pass-protecting-victorian-homeowners/">New laws have been passed</a> in Victoria under the Andrews Labor Government with the intent to protect <a href="https://www.urban.com.au/new-apartments">off-the-plan</a> buyers against negligent sunset clause arrangements, among other new bills included in <a href="https://www.parliament.vic.gov.au/legislation/343-legislation-and-bills/articles/1824-bills-this-week">The Sale of Land Amendment Bill 2019</a>.

The new sunset clause regulations will retrospectively come into effect from 23rd August 2018, ensuring both current and future <a href="https://www.urban.com.au/new-apartments">off-the-plan</a> homeowners will be covered.

Up until now, developers have been able to include a sunset clause provision in <a href="https://www.urban.com.au/new-apartments">off-the-plan</a> contracts, meaning that they can terminate the contract where the plan of subdivision hasn’t been registered by a specific date. This has led to exploitation by some accounts whereby the developer has deliberately delayed delivery of a project to terminate <a href="https://www.urban.com.au/new-apartments">off-the-plan</a> contracts and then resell the apartment for a higher price.

The new initiative will mean developers may only exercise a sunset clause if written consent is provided by the buyer or Supreme Court of Victoria.

<blockquote>
“We’re ensuring that current or future homeowners aren’t being ripped off by dishonest developers, being misled about the history of their property and that vendors who do the wrong thing are punished accordingly.”
</blockquote>

- Minister for Consumer Affairs Marlene Kairouz

New laws will also:

<ul>
<li>Prohibit public auctions of land before 1 pm on Anzac Day, bringing the industry into line with the standard restricted business hours for the day</li>
	<li>Strengthen the existing requirement for vendors or real estate agents to disclose material facts about a property, and enable guidelines to detail what a material fact is likely to be (for example, a property’s past history as a clandestine drug laboratory or the site of a homicide)</li>
	<li>Introduce greater protections for people who purchase options to buy land as part of a land banking scheme, including requiring money paid for options to be held in a trust</li>
	<li>Prohibit certain terms contracts and rent-to-buy arrangements, with significant fines and potential jail time for vendors and third-party intermediaries to act as a strong deterrent.</li>
</ul>
<blockquote>
“Knowing they have the law behind them will give families and young people peace of mind when investing in the often-intimidating property market.”
</blockquote>

- Minister for Consumer Affairs Marlene Kairouz
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Olivia Round

New changes to sunset clause provide more protection to Victorian off-the-plan buyers

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The Australian Securities and Investments Commission has remade Class Order Mortgage schemes – Chapter 5C and disclosure relief, which was due to expire on October 1.
The new instrument, ASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857, continues to provide:
<ul>
<li>scheme registration, licensing, disclosure, and hawking relief for certain small-scale schemes with no more than 20 members;</li>
<li>scheme registration relief in relation to individual mortgages in a scheme; and</li>
<li>withdrawal-related relief for individual mortgages in a scheme.</li>
</ul>
ASIC has temporarily extended the relief for small, industry-supervised schemes. The Legal Profession Uniform Law as it applies to the promotion and operation of managed investment schemes by law practices is due to come into force on 1 July 2018. 
The regulator said it will review the extension within 12 months of issue and assess whether it should be remade and, if so, whether it is operating effectively and efficiently.
ASIC has not continued the transitional 'run-out' relief as it was no longer necessary.
The relief was remade following public consultation in Consultation Paper 287 Remaking ASIC class order on mortgage schemes and proposed relief for multiple withdrawal periods (CP 287), issued in June 2017.
All respondents were supportive of the proposals in CP 287. ASIC has included material in the explanatory statement for the new instrument to provide clarity regarding:
<ul>
<li>the status of the temporarily extended, industry-supervised scheme relief if section 258 of the Legal Profession Uniform Law comes into effect; and</li>
<li>the scope of the withdrawal-related relief for individual mortgages in a scheme.</li>
</ul>
Under the Legislation Act 2003, all class orders are repealed automatically or 'sunset' after a period of time (mostly 10 years) unless we take action to preserve them. 
All government organisations are responsible for considering whether the legislative instruments they have made that are due to sunset will be relevant after their sunset date.
 
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jonathanchancellor-7SQnKwU6yx

ASIC remakes 'sunsetting' class order about mortgage schemes

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GUEST OBSERVER
The Conveyancing Amendment (Sunset Clauses) Act 2015 came into effect on 2 November 2015, as the new division 10 s66ZL of the Conveyancing Act 1919 (NSW).
The amendments require vendors to either obtain the consent of all of the purchasers before they can rescind an off-the-plan contract in reliance on a sunset clause in the contract, or alternatively, obtain the permission of the Supreme Court to rescind.
These new laws apply to all attempts to rescind for sunset dates in all off-the-plan contracts for sale of residential lots in New South Wales after 2 November 2015, no matter when the contract was entered.
The Case
Jobema Developments Pty Limited v Zhu &amp; Ors [2016] NSWSC 3 is the first case in which the Supreme Court had a developer's request to rescind a contract in reliance of a sunset clause for an off-the-plan property since new laws came into effect. The Court rejected the developer’s application to rescind a contract pursuant to a sunset clause.
Background
Mr Wu (defendant) entered into the contract with Xycom, the original vendor, on 6 December 2013, to purchase a home unit off-the-plan. It was in a 14 storey property development project for 72 residential units and 7 commercial lots in Dora Street, Hurstville. The sunset date for the registration of the Strata Plan was 31 December 2015. After that date, either party had 14 days to rescind the contract. The developer’s right to rescind the contract was qualified by the requirement to ‘use all reasonable endeavours to have the Strata Plan registered by the sunset date'.
However, although Xycom obtained the development approval, they carried out little to no construction work after entering into the contracts to the Purchasers. Subsequently, in October 2014, Xycom sold the development site to Jobema Developments (plaintiffs) which settled in January 2015. The sale was subjected to the existing off-the-plan sale contracts, which were novated to Jobema. Jobema assumed the development and other obligations of Xycom under the existing off-the-plan contracts, however was unable to get the strata plan registered within the contemplated time in the contract. 
On 1 December, Jobema served a notice to Mr Wu proposing to rescind the contract under s66ZL(4):
"Jobema is proposing to rescind the contract because:
<ol>
<li>Since the date that the Contract was entered into, construction costs have increased significantly;</li>
<li>(Xycom) did not advance the property to the time that Jobema acquired it in 2015;</li>
<li>The contract does not meet the financial requirements for funding the project in 2015;</li>
<li>Jobema has offered [Mr Wu] the opportunity to continue with the purchase at a new price which reflects 2015 current market conditions;</li>
<li>[Mr Wu] [has] elected not to continue on the basis set out in paragraph (d);</li>
<li>Jobema has the opportunity to sell the property in the Contract at a price which reflects the 2015 market and takes into account the increased construction costs referred to in paragraph (a).</li>
</ol>
The lot which is the subject of a Contract has not yet been created for the following reasons:
<ol>
<li>From the date of the Contract until 5 February 2015 [Xycom] carried out little or no physical work for the Project;</li>
<li>Since 5 February Jobema has entered into contracts to sell other lots in the Project in order to secure finance for the Project;</li>
<li>Jobema has commenced physical works but anticipates that the lot will not be created until sometime in 2017.”</li>
</ol>
Mr Wu did not consent to the rescission and Jobema applied to the Supreme Court under s66ZL of the Conveyancing Act seeking the Court’s permission to rescind the contract pursuant to the sunset date clause contained in the contract. 
The Court's Decision 
Justice Black of the Supreme Court found against the developer in all factors outlined in s66ZL.
In s66ZL(7)(g) – any other matters or factors that the Court may consider to be relevant, the developer raised two matters:
<ol>
<li>That there was an increase in construction costs that affected the construction funding. However, the Court noted that ‘an inability to rescind’ the contract would not affect the availability of construction finance – it would only result in a requirement ‘to contribute additional capital to meet its lender’s requirements’.</li>
<li>That the new Sunset Clause Law was unforeseeable when Jobema purchased the property from Xycom, and thus Jobema’s rights should not be restricted. The Court disagreed, stating that legislative change is generally a foreseeable risk of business activity.</li>
</ol>
Not Just and Equitable
An order under s66ZL(6) of the Act is only made if the Court is satisfied that the order is just and equitable in all the circumstances to do so. Whilst the Court accepted that the evidence indicated that since buying the site in 2014, Jobema had exercised diligence in progressing the construction of the site, the court was unable to disregard Xycom’s lack of diligence in considering an order where Jobema had expressly assumed Xycom’s obligations. 
The Court dismissed the application for an order allowing the developer to rescind for the sunset date under s66ZL(6) because it was not satisfied that it was just and equitable to make the order.
Importance
The reason sunset clauses are included in “off-the-plan” contracts is to protect both parties and prevent contracts with no end date from going for too long. The new laws do not prohibit or discourage sunset clauses, however they do put the onus on the developer to show that the rescission is just and equitable (s66ZL(6)) when the purchaser does not consent to the rescission. 
The Court took into account the prescribed factors laid out in s66ZL of the Act, including that it will look at what was done by the present vender developer and also what was done by the prior vendors. This case serves as guidance as to how the Court is likely to interpret these new provisions of the Act in the future. 
If you have any queries regarding Sunset Clauses or this case please do not hesitate to contact TressCox Lawyers <a href="https://www.tresscox.com.au/" target="_blank">here</a>.
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jchancellor-FAypfDUnLy

Property 101: Developer's application to rescind contract rejected in first case on new Sunset Clause Laws 

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GUEST OBSERVER
The Urban Development Institute of Australia (UDIA) NSW urges the state government to conduct an independent review into the reported misuse of sunset clauses in off-the-plan property contracts to understand how widespread the issue is.
The state government needs to establish how many incidences there have been of developers purposely rescinding contracts after the sunset clause to sell properties at a higher price, and who these operators are. As far as I am aware, such behaviour is not common practice. 
Our view is if this is happening, and it’s rare that it does happen, then it needs to be stopped because people act in good faith they expect the counter party to act in good faith, and we have to resolve this issue
It is crucial that the government does not base its policy responses on anecdotal reports. 
We need an independent review into the problem before making any policy changes to understand the extent of the problem. 
Any reform to the Conveyancing Act 1919 would need to consider implications to housing supply as it could impact on the ability to raise development finance. 
The government’s proposal to allow only purchasers the option to rescind contracts during the sunset clause could have a negative impact on a project investor’s ability to secure finance to build homes because of the increased risk. 
The market is also rising now, but if and when it dips, purchasers should not have the option to rescind a contract simply because a dwelling is worth much less than it was when they entered into it. 
Any new legislation must be measured and balanced, and before any changes, it’s vital the government establishes the scope of the issue.
It is also important that reputable developers who deliver a project beyond the sunset clause because of reasons beyond their control – such as delays getting applications through councils or financing issues – do not get penalised. 
The Urban Development Institute of Australia NSW is the state’s leading property industry body. It advocates for better planning; timely and affordable housing, and the building of vibrant communities to increase local job opportunities.  
Stephen Albin is chief executive of UDIA NSW and can be contacted <a href="https://www.udia.com.au" target="_blank">here</a>.
 
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Sunset clause

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