Property Contracts

Purchasing an off the plan property is a very different prospect compared to buying an established property.

Everything about the process is different. For starters, the property isn't even built when you agree to purchase.

Given the added complexity of purchasing an off the plan apartment, the contracts drawn up between developer are also more complex.

We've wrapped up the top seven things to look at when reviewing an off the plan contract.*

<h1>1. &nbsp;What is an off the plan contract?</h1>

An off the plan contract is a contract between a buyer and developer for the purchase of a property that has not yet been built. The contract sets out the terms and conditions of the sale, including the price, deposit amount, settlement date, and any special conditions that apply.

<h1>2. &nbsp;Why is off the plan property popular?</h1>

Off the plan property is popular because it offers buyers the opportunity to purchase a property at today's prices but settle at a later date when the property is completed. This can be advantageous for buyers as it allows them to lock in a price before construction costs increase.

<h1>3. &nbsp;What should I look for in an off-the-plan contract?</h1>

When reviewing an off-the-plan contract, there are several things that you should look for:

- The price: Make sure that you're happy with the price that has been agreed upon and that it is in line with similar properties in the area. 
 
- The deposit amount: Check that you're comfortable with the deposit amount and that it is refundable under certain conditions (e.g., if construction doesn't commence within a certain timeframe). 
 
- The settlement date: Ensure that you're aware of when settlement will take place and whether there are any conditions attached to this (e.g., construction must be completed by a certain date). 
 
- The cooling-off period: Make sure you understand your cooling-off rights and how long you have to change your mind after signing the contract.&nbsp;

<h1>4. What happens if I change my mind after signing an off–the–plan contract? &nbsp;</h1>

If you have signed an unconditional contract, generally speaking, you cannot change your mind about buying the property without incurring some sort of penalty e.g., losing your deposit. 
 
However, if your contract contains a waiver clause or sunset clause , then these may give you some flexibility in changing your mind without being penalised.

<h1>5. What is a waiver clause?</h1>

A waiver clause essentially states that if certain conditions aren’t met by a given date (usually completion of construction), then you as the buyer are released from your contractual obligations. 
 
For example, if construction isn’t completed within two years from when contracts were exchanged, then buyers may be able to walk away from their purchase without losing their deposit . &nbsp;

<h1>6. What is a sunset clause?</h1>

A sunset clause works in a similar way to a waiver clause in that it releases buyers from their contractual obligation if certain conditions aren’t met; however, as opposed to being linked to completion of construction, a sunset clause is usually linked to obtaining development approval from council. 
 
So, if council approval isn’t granted within 12 months from when contracts were exchanged, then buyers may be released from their purchase obligation. &nbsp;

<h1>7. Will I still need to pay stamp duty on an off the plan property?</h1>

In most cases, yes – even though settlement hasn’t taken place yet , stamp duty will still need to be paid at the time of exchange. 
 
However, there are some jurisdictions where payment of stamp duty may be deferred until settlement takes place e.g., Victoria and Queensland.&nbsp;

*Disclaimer - this should not constitute legal advice and you should always speak to a lawyer when executing property contracts.

Given the added complexity of purchasing an off the plan apartment, the contracts drawn up between developer and purchaser differ greatly also compared to buying an established property.

Urban Editorial

The top seven things to look for when reviewing an off the plan property contract

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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McGrath is among a growing number of real estate agents using FLK IT OVER that enables Residential Tenancy Agreements to be signed on the phone and in a world first can now speak to you through smart speakers Google Home or google assistant.
“Since its launch earlier this year FLK IT OVER has been used to sign 5,500 property leases with over 400 property managers now using the technology,” said its Founder Andrew Colagiuri.  
FLK IT OVER is a digital platform enabling tenants to sign leases via their smartphone. The agent sends tenants a link via SMS then FLK IT OVER takes the tenant through the lease conditions, requiring tenant approval at various stages and a signature at the end on the screen of their phone.
“This technology, first available in NSW, has just launched in Queensland and is now compatible with Google Home so tenants can ask google when their lease ends, when rent is due and who the emergency plumber is without getting off the couch,” said Mr Colagiuri.
“You can also let google know you want to talk to your property manager and an email will be sent requesting them to call – gone are the frustrating days of the tenant having to chasing their agent.”
Mr Colagiuri said, “it’s even helping the environment, so far FLK IT OVER has saved 35 trees (275,000 sheets of paper) reducing costs for agents and freed up their time to concentrate on other work instead of chasing lease signatures.”  
FLK IT OVER was recently awarded best new Utility Product at the digital and technology AMY awards ahead of Qantas, Lendi, Unicef and Alexia.  
Rob Fearnley, Head of Property Management at McGrath said his company is embracing the innovative technology. 
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FLK IT OVER the world's first talking digital tenancy lease agreement

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The Victorian government has stepped in to protect real estate agent commission payments after agents were using non-compliant contracts sold by the Real Estate Institute of Victoria (REIV) that had been approved by Consumer Affairs Victoria.
The faulty contracts were Exclusive Sales Agreement (ESA), legally binding documents that give an agent the right to sell a vendor's home and be paid for their services. 
The Victorian government said it would amend the Estate Agents Act 1980 to "protect agent commissions after contracts with incomplete rebate statements were used".
Amendments will be introduced into the Victorian Parliament after <a href="http://www.afr.com/real-estate/residential/vic/estate-agents-commissions-under-threat-after-real-estate-institute-of-victoria-blunder-20180511-h0zyb6">a Ray White St Albans agent was ruled ineligible for commission</a> on a land sale because the County Court ruled the ESA form was non-compliant.
In April, Victoria's Court of Appeal upheld the initial 2017 County Court ruling that denied the Ray White agent his commission.
There has been another case yet to be heard where a vendor, Marika Sutherland, seeks a ruling preventing agents Globe Real Estate from collecting an $82,000 commission on the 2017 sale of her Beaumaris home.
Despite speculation of a likely flood of claims against both the REIV and CAV, the situation has not escalated but no agent who used these forms will be penalised because of an error in the paperwork, said Minister for Consumer Affairs Marlene Kairouz.
"We're fixing this problem, giving agents who acted in good faith reassurance their commissions will be protected by law," she added.
The changes would not apply to disputes over commissions already dealt with by the court.
The property law expert Robert Hay, QC, warned there was no legal defence for those agents who are challenged over commissions.
"As it stands, there's not much they can do. There could be lots of innocent agents, who could be disgorged of their commissions,'' he told Fairfax Media.
Lawyers acting for Sutherland will seek $138,500 – the 10% deposit paid on the $1,385,000 sale of her home at 37 Oak Street, Beaumaris, in February 2017 – from Globe Real Estate, plus interest and legal costs.
The deposit, of which $81,616 is due to be paid out in commission, remains held in the trust account of Globe Real Estate's lawyers Marsh &amp; Maher following a dispute over payment. The property settled in April last year.
In August, Sutherland's solicitor Bill Gioutlou filed a motion in the Supreme Court seeking a declaration that the ESA form used by Globe Real Estate did not comply with section 49A of the Estate Agents Act of 1980 and because of this, Globe Real Estate is "not entitled to retain any commission or money ... in respect of the sale of the property". 
Bentleigh-based Globe Real Estate, which is owned by Yufang "Kiki" Jiang, opposes the motion.
In October last year, Globe Real Estate joined the REIV as a third party to the proceedings alleging the REIV was ultimately responsible for any non-compliance.
This would entitle Globe Real Estate to claim from the REIV relief, including any costs, losses or damages that arise out of the legal proceedings.
It is understood the REIV, which in its filed defence denies any negligence in providing the ESA form and notes it was approved by Consumer Affairs Victoria, lobbied the state government to retrospectively amend real estate laws.
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Victorian government steps in to protect agent commissions from non-compliant contracts

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GUEST OBSERVER
The Financial Services Royal Commission has exposed the pressure selling tactics used by the banks. They draw on simple psychological rules to target vulnerabilities among some of their most loyal customers.
One example is the high-pressure selling of add-on insurance for customers when they sign up to a credit card. The Commonwealth Bank of Australia (CBA) acknowledged that upwards of A$13 million of refunds are likely to be paid to consumers who had been pressured into buying these add-on products.
Another witness at the commission, Irene Savidis, relayed what happened when she tried to cancel this insurance: "they just kind of kept pushing it on me saying, you know, “It’s good for you, it will help you.” I just felt pressured or kind of like, you know, no matter what I said, it was the opposite. So I couldn’t – I felt like I couldn’t cancel it."
These techniques are well established in psychological research as ways to manipulate behaviour. In this single example, we can see how the representative of the CBA used trust, repetition (the more something is repeated, the more we are likely to believe that it is true), authority (the salesperson is perceived to be an expert), and scarcity (act now, or you will miss out). All of these factors are part of the marketers’ bag of tricks.
As much as trust can be useful under certain circumstances, at times it can be dangerous. When we are faced with choices or decisions where we don’t feel confident, we have a tendency to give over our decision making to somebody who we believe has those skills and authority and trust them to do the right thing by us.
How we make decisions under situations of stress
As we can see in the examples from the commission, many of these financial decisions are being made by consumers under already significant financial and psychological stress. We also know that under these conditions none of us make the best decisions.
In psychology, we know that people don’t always think through their decision making in a rational and linear way when placed under situations of stress. This becomes more pronounced when – counter intuitively – people are provided with lots of information related to a topic that they don’t have the ability to fully understand, either because it is complex and confusing, or even simply because it is in an area that they don’t have any experience in.
It’s in these situations that they rely on peripheral information to make their choices – things like colours, previous experience with similar situations, even the aesthetic layout of the information, or the way the person giving them the information is dressed.
When we feel we have less resources, we perform worse on tasks requiring high-level cognitive control, like important decision making. Logical reasoning, the kind that should occur when signing up to a loan, extending our credit, or committing to any major financial agreement, is relatively inefficient in these situations.
Responding to pressure selling techniques
So, how do we respond to the types of techniques that we have seen and any others that might be exposed by the commission over the next 12 months?
We need to accept that our decision making is flawed and not judge ourselves, or others, harshly, when they seem to make irrational decisions, or behave in a way that is counter-intuitive. We need to accept that people are complicated, and will make a decision that conforms to their emotional state of mind, at that point in time.
That said, there are some things people can do to avoid some of these manipulative tactics. One thing is to do your best to slow down when it comes to decision-making. If you do want to buy something, that’s fine, but do it outside the heat of the sales process.
Speak to someone you trust about your plans. Recognise that your emotional brain may already have convinced your rational brain that you are making a good decision, so you need to check in with someone who isn’t emotionally engaged in the decision.
And if the person offering something like add-on insurance creates a sense of scarcity, then identify the feeling, and assume you can walk away. A classic technique of traditional sales is to say something along the lines of, “I can only offer you this now”, but the best response is always to take your time. If they are offering you this today, they are more than likely to offer it to you tomorrow.
One thing that has emerged from the royal commission is the somewhat obvious fact that banks are businesses. Indeed, people should not be fooled into thinking that banks are anything other than profit-driven organisations. Banks know exactly what they are doing when it comes to the use of manipulative techniques to get customers to buy their products.
<img src="https://counter.theconversation.com/content/93424/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1">The hope is that this royal commission will be able uncover and act upon some of the practices verging on illegal, while highlighting some of the more unpleasant and unethical practices that have been occurring.
Paul Harrison, Director, Centre for Employee and Consumer Wellbeing; Senior Lecturer, Deakin Business School, Deakin University
Chiara Piancatelli, Visiting Research Associate, Deakin University
This article was originally published on <a href="http://theconversation.com" target="_blank">The Conversation</a>. Read the <a href="https://theconversation.com/why-dont-we-read-the-fine-print-because-banks-know-the-pressure-points-to-push-93424" target="_blank">original article</a>.
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Why don't we read the fine print? Because banks know the pressure points to push

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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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