You may have clicked on this article to know what is a sunset date. Lucky for you, we can show you how to work around this clause to help you with your property purchases. Australians aren’t new to buying second-hand property. Either way, they will still sign contracts for such properties.
A sunset date is a day a developer fulfils the final obligation prior to settlement and registers subdivision plans. This clause is usually present in contracts that are subject to lengthy delays for construction purposes, especially for off the plan sales. If the developer is unable to deliver by the specified date, either party may cancel the contract without a penalty.
This means that both parties actually benefit from this clause. Developers understand that delays increase costs and buyers want their properties finished on a set date. Beyond the legally mandated sunset dates, many contracts include agreed-upon sunset clauses. This establishes a reasonable timeframe for both parties to remain bound.
This is also the specific date in a Contract when the buyer has the right to get their deposit back. This is good news for buyers if the developer does not register the subdivision plans. The new subdivision plans for the development are the point in the construction timeline when the individual title is issued.
When talking about what is a statutory sunset date, there are a lot of factors that can affect it, especially on an individual’s property. In this article, we’ll tackle what is a sunset date to have a better idea of it.
Developers May Cancel the Project
A sunset clause protects the buyer or seller and gives the party the option to leave the contract if things don’t go as planned. However, a developer can use the sunset clause on a Contract for Sale to terminate the contract. Some developers who act in bad faith may also activate the sunset clause. Why? They sometimes find out that they can resell the property at a higher purchase price.
This creates disputes and even disappointment for possible buyers, who may have been waiting for the completion of their properties in a given time frame. To prevent these dishonest developers from cancelling existing contracts unreasonably, the Australian government has introduced new legislation in New South Wales (NSW).
Laws About the Sunset Date
Under the Conveyancing Amendment (Sunset Clause) Act 2015, a seller must give notice to all buyers about the clause. The seller must also have written consent from either the buyer or the Supreme Court for the proposed rescission. If a buyer doesn’t respond to this notice, then the seller cannot proceed with the termination of the contract.
There are some factors to consider when granting a developer permission to terminate a contract. These are:
- The terms in the contract for the sale of the off-the-plan property
- If the developer has been unreasonable or has acted out of spite
- If the value of the lot where the property is to be built has increased
- The effect of the termination on buyers and other significant information
Note: For purchases in community titles schemes (like apartments, units, or townhouses), the legal sunset date is 5 and a half years from the contract signing. On the other hand, standard land purchases have a sunset date taking effect in 18 months. However, some land sales don’t have a statutory sunset date.
What Should Sellers Show You?
Buyers should be aware that sellers must show them complete documents aside from the contract of sale. Let’s look at them:
1. Disclosure Statement
- The proposed lot number, area, and location. For proposed strata lots, parking or storage area locations and sizes are not required.
- The location of any proposed easement or profit à prendre affecting the lot, and any proposed restrictions on land use or positive covenants affecting only part of the lot.
- For proposed strata scheme lots: the draft floor plan and draft location plan.
- For proposed community, precinct, or neighbourhood scheme lots: the draft location diagram, draft detail plan, and draft property plan.
2. proposed schedule of finishes
3. Any proposed s88B instrument to be lodged with the plan.
4. For proposed strata scheme lots: the draft by-laws.
5. For the proposed community, precinct, or neighbourhood scheme lots: the draft management statement and any proposed development contract.
6. For land including a lot in a proposed development scheme: the draft strata development contract.
7. For proposed strata scheme lots relating to a part strata parcel: a draft strata management statement as required under Section 99 of the Strata Schemes Development Act 2015 for strata plan registration.
8. For land subject to a building management statement under Division 3B of Part 23 of the Conveyancing Act 1919: the draft building management statement.
Why Are Sunset Dates Useful for Off-The-Plan Sales?
When buying off the plan sales, the sunset clause can give the buyer the option to walk away if the project gets held up. Moreover, they will also get their deposit back fully.
Typically, purchasers can pay a 10 percent initial deposit, with the balance of funds not due until the construction of the property is completed. Depending on contract terms, the developers and builders can also switch out current appliances and fittings for ones with newer and similar quality and can even make small changes to floorplans.
The Court will then consider termination proposals on a case-by-case basis. The proposed law also requires the developers to pay all transactions and costs that may be incurred during the termination process.
What Is A Sunset Date: Expiry
Anecdotally speaking, it is unusual that the sunset date lapses on a property. Let’s consider some reasons that this might happen. They are all to do with the action of the vendor and there isn’t really anything the purchaser can do to affect this.
The sunset date may also expire if the builder runs out of budget or there are substantial delays in the construction. Reasons for running out of budget or substantial delays are:
- Other units that are still up for sale
- Other projects are still in line for finishing
- Delays due to weather, council regulations, and approvals
- Labour shortages and poor project management
Do you want to avoid these problems as a buyer? If so, buyers should look at the past history of the developer. Did they completed past projects on time? Were they developers who had good project management and had good records?
Can Buyers Change the Sunset Date to an Earlier Date?
Can buyers change the sunset date to an earlier one? Frankly, no. The sunset date is the framework that the seller chooses to ensure that the transaction with the buyer has an end date. Otherwise, the buyer’s deposit might go nowhere. Developers, builders, and sellers may run away with the buyer’s deposit money and not fulfil the buyer’s plans for the project.
The buyer would want to know at some point if the builder hasn’t completed the development so they can retrieve their deposit. With this being said, it is also unlikely that the developers and builders will bring that conclusion period forward for the reason of giving themselves a lot of time in finishing the project.
What Should I Do if There Is No Sunset Date?
When talking about what is a sunset date, it is not necessarily needed in a contract of sale. Buyers won’t need to worry if the property they are buying already has an individual title. However, when buying property ‘off-the-plan’ it is important to seek legal advice since some sellers discreetly hide sunset clauses under special conditions.
Importance Of Seeking Legal Advice
Now that we have a general idea of what is a sunset date and other factors affecting it, it is only important to seek legal advice when purchasing properties as dealing with developers and builders can be difficult when you are not aware of the various rules and clauses related to it.
This article does not constitute legal advice and is only a summary form of the sunset date. Our property and conveyancing lawyers at JB Solicitors can aid you when purchasing ‘off-the-plan’ properties and going more in-depth in knowing what is a sunset date for your specific circumstances.
What’s more, our fixed-fee prices give you a clear sense of cost. This will save you from your financial burdens apart from the increasing costs of properties these days.
Contact JB Solicitors today to know more what is a sunset date.
