21 November 2023
On 14 November 2023, the Queensland Government passed the Body Corporate and Community Management and Other Legislation Amendment Bill 2023, amending the Land Sales Act 1984 (Qld) to refine the operation of sunset clauses in off-the-plan land sale contracts. The amendments bring the comparable Queensland legislation in line with existing New South Wales legislation and importantly, will operate and apply retrospectively to existing unsettled contracts in Queensland.
Off-the-plan land sale contracts often include a clause that provides for the contract to be terminated if a relevant event does not happen by the sunset date (these are known as ‘sunset clauses’).
Previously, if a contract included a sunset clause, property developers could unilaterally terminate a sales contract. The new laws limit when developers can terminate pursuant to these clauses.
Under the new amendments, a sunset clause can only be exercised by a seller to terminate an off-the-plan contract in the following circumstances:
To terminate with the buyer’s consent, a seller will be required to provide the buyer with a ‘sunset clause notice’ (the Notice) at least 28 days before the sunset date.
The Notice will need to include:
Buyers are required to act reasonably when opting to give or withhold their consent and should they fail to respond to the Notice, buyers will be deemed to have consented to termination on the sunset date.
The legislation does not require the seller to state in their Notice that a failure to respond will be a deemed consent. It simply requires a statement that the buyer ‘must respond to the notice no later than the day immediately before the sunset date’.
If a seller seeks to apply to the Supreme Court for an order permitting them to terminate the contract under a sunset clause, they must satisfy the court that it is just and equitable in the circumstances. The court will consider among other things whether there is a reasonable prospect of the seller settling the contract, the effect of termination on the parties, whether the value of the land has increased and all steps the seller has taken to achieve settlement.
Buyers and sellers alike, with or without existing off-the-plan land sales contracts ought to be aware of these changes. If you have any questions regarding this article, please contact a member of our team below.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.