In brief

The Sale of Land Amendment Bill 2018 (the Bill) was introduced into the Victorian Lower House on 21 August 2018.  The Bill implements a number of reforms to the Sale of Land Act 1962 designed to address ongoing issues in the Victorian property market resulting in consumer detriment.

What you need to know

The Bill aims to:

  • restrict the use of sunset clauses in certain off-the-plan contracts;
  • prohibit the use of certain types of terms contracts and rent-to-buy arrangements;
  • regulate money paid in relation to options;
  • amend the ANZAC Day Act 1958 to restrict public auctions on ANZAC Day; and
  • amend the Estate Agents Act 1980 in respect of payments that may be made from the Victorian Property Fund.

Off the Plan contracts of sale

A sunset clause is a provision in a residential off the plan (ROTP) contract that allows the contract to be rescinded if the relevant plan of subdivision has not been registered or occupancy permit has not been issued by the nominated sunset date. The proposed new requirements will prevent a vendor rescinding ROTP sales contracts based on a sunset clause without:

  • at least 28 days’ written notice to the purchaser; and
  • purchaser’s consent.

In addition, the notice must specify:

  • the reason why the vendor proposes to rescind the contract;
  • the reason for the delay in registering the plan of subdivision or the issuing of the occupancy permit; and
  • that the purchaser is not obliged to consent to the proposed rescission.

The bill provides that the ‘notice’ and ‘consent’ provisions will apply to sunset clauses in all ROTP contracts with retrospective operation from 23 August 2018. This means that sunset clauses in existing contracts claiming to provide for the vendor to terminate after the sunset date without the purchaser’s consent may not be effective.

 Conclusion

The Bill before Parliament proposes to make a new law that will retrospectively affect ROTP contracts.  However, that law is not yet in force and may be subject to amendment, delay or defeat in Parliament.  We will continue to monitor progress of the Bill through Parliament so that we are ready for its introduction if it passes into law. Please contact us if you need advice to manage potential risk exposures arising from the proposed retrospective changes to sunset clauses.