Sun setting on unfair off-the-plan sunset clauses

By Grace Ormsby

July 16 2019
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Sunset clauses have long received a bad rap from off-the-plan property purchasers concerned that a property developer may terminate the contract in pursuit of a larger windfall, but a lawyer has backed the clause as “an important and useful inclusion” for both parties.

A sunset clause provides “a right to terminate an off-the-plan contract by either the buyer or seller if a project does not complete by a specified date”, according to Jason Cornwall-Jones, a real estate partner from the law firm Ashurst.

Essentially, the sunset clause permits either party to walk away from the deal if there is an unreasonable delay in construction of the property or registration of a plan of subdivision, he explained.

The sunset clause problem

The problem with sunset clauses from the purchaser’s perspective “is that they have historically permitted a vendor to ‘cancel’ the deal if the vendor hasn’t completed construction of the property by an agreed date”, Mr Cornwall-Jones said.

This is not so much of a problem in a falling market, or if there is a genuine insoluble problem with the project, the lawyer outlined.

However, “a concern can be where a vendor wishes to terminate a contract in a strongly rising market – the vendor may be able to use the sunset date as a means to escape an existing contract and sell to another buyer for a higher price”.

This is very unfair for the purchaser, Mr Cornwall-Jones considered, as “the uplift in value should really be for the benefit of the purchaser”.

So why use sunset clauses at all?

Despite the problems outlined above, Mr Cornwall-Jones said “sunset dates are an important and useful inclusion in an off-the-plan contract, as otherwise a contract could subsist forever, even when there is no realistic prospect of the project completing”.

“At some stage, the parties must have the ability to bring an end to the contract and move on,” the lawyer noted.

“It is undoubtedly sensible to include an agreed sunset date in an off-the-plan contract,” he re-iterated.

Are there any protections in place for purchasers?

According to Mr Cornwall-Jones, the application of the sunset date will only be fair if the vendor has used reasonable endeavours to progress the project.

“It would be sharp practice for a developer to seek to rely on a sunset date to escape a contract if it had not even tried to progress the project.”

The common law, as it stands, suggests that a developer is obliged to progress a project where possible and cannot use slowing-down tactics to their benefit, the lawyer said.

Mr Cornwall-Jones said new Victorian legislation, introduced in August last year, will also be helpful for the state’s off-the-plan purchasers, which will “formalise the vendor’s obligation to only rely on a sunset date where it is justified in doing so”.

It follows the introduction of similar legislation in New South Wales back in 2015.

All-in-all, it’s important for purchasers of off-the-plan properties to understand their rights, the lawyer said.

“Buyers should understand that in order for a vendor to rely on a sunset clause, the vendor must first give notice to the buyer of a proposed rescission and obtain the buyer's written consent to the proposed rescission, failing which the seller is obliged to apply to the Supreme Court for an order permitting the rescission,” he explained.

Mr Cornwall-Jones noted that new residential off the plan contracts now need to include specific statements detailing the seller's obligations and the buyer's rights in respect of sunset clauses.

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About the author

Grace Ormsby

Grace is a journalist on Momentum Media's nestegg. She enjoys being able to provide easy to digest information and practical tips for Australians with regard to their wealth, as well as having a platform on which to engage leading experts and commentators and leverage their insight.

About the author

Grace Ormsby

Grace is a journalist on Momentum Media's nestegg. She enjoys being able to provide easy to digest information and practical tips for Australians with regard to their wealth, as well as having a platform on which to engage leading experts and commentators and leverage their insight.

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