Have sunset clauses been eclipsed by ACT laws?

Online consultations, accessible via the ACT government’s website, will close on 20 May 2024.

The consultations will review the success of an amendment made in November 2021 to the Civil Law (Sale of Residential Property) Act 2003 which aimed to prevent property developers and off-the-plan property vendors from unfairly cancelling off-the-plan contracts.

A routine inclusion in many off-the-plan property contracts, sunset clauses allow either buyers or sellers to walk away from the contract with all deposit funds restored if the project is not completed within the promised time frame.

In 2021, the ACT government stated it had received growing complaints of property developers who were rescinding off-the-plan contracts in order to re-list them for sale at a higher purchase price.

Developers would purposely run over the time specified in the sunset clause in order to terminate the contract and increase profits.

At the time these reports were surfacing, ACT Attorney-General Shane Rattenbury stated he was “very concerned to hear about home buyers losing the homes they set their hearts on, now inconvenienced and potentially out of pocket”.

In response, the government included a new clause in the Civil Law (Sale of Residential Property) Act 2003 that prevented sellers from rescinding a contract under a sunset date or delay event recission clause unless they had obtained either written consent from the buyer or an order from the Supreme Court allowing the recission.

Two years on, the ACT government has invited people who have been involved in buying or selling off-the-plan properties to make a written submission or to complete a survey about their experiences.

“We want to hear from those who have experience with buying or selling off-the-plan properties, to make sure that our current laws are working for them,” said Rattenbury.

“These protections were introduced in 2021 in response to concerns that property developers may have been rescinding contracts to take advantage of rising property prices. Now, if a seller is cancelling a contract under a sunset date or delay event recission clause, they need to get consent from the buyer or an order from the Supreme Court,” stated the Attorney-General.