Although not yet in force, as of 13 November 2018, there have been further changes to legislation on ‘off the plan’ contracts, primarily for the benefit of purchasers. Purchasing ‘off the plan’ essentially means purchasing property which does not exist at the time of the purchase, but which will exist at the time of settlement.

E-conveyancing is becoming more common and will become compulsory for mainstream property transactions on 1 July 2019, and these changes allow greater flexibility. In the writer’s view these changes are proactive and appropriate, particularly when it comes to e-conveyancing. Here is a summary of the changes:

Off the Plan Contracts

1. There will be a requirement for all developers selling ‘off the plan’ to provide a separate disclosure statement to potential purchasers in addition to the Contract for Sale, setting out crucial information, including the proposed subdivision or Strata Plan, a copy of the proposed by-laws, a schedule of finishes, and any sunset dates.

2. Developers will have to notify purchasers of any changes to a ‘material particular’ during the development. A change to a material particular is something that will have an adverse impact on the use or enjoyment of the lot being sold. Examples include the size of the block of land being varied or the strata unit changing in configuration or size.

3. In the event that the purchaser has been prejudiced due to a material particular change that was not notified to the purchaser by the developer, then, if the purchaser would not have entered into the contract had they known about the change, they will be entitled to rescind the contract. If, however, the purchaser decides not to rescind the contract, they could also be entitled to claim compensation from the developer.

4. Developers will be required to provide a copy of the Registered Plan at least 21 days before settlement, where currently 14 days is allowed.

5. Cooling-off periods for off the plan purchases will be extended to a minimum of 10 business days, rather than 5 business days, to allow more time for a purchaser to review the contract or obtain finance before deciding whether to proceed.

6. Events which can trigger sunset clauses will be extended, e.g. the issuing of an occupation certificate, and a party will be able to claim damages if another party rescinds a contract pursuant to a sunset clause in the contract. This will make reliance by developers on the sunset date as a reason to rescind more onerous, and may expose them to damages claims by purchasers.

E-Conveyancing

7. Obstacles to conveyancing transactions being done electronically from start to finish will be removed, including confirming that contracts for sale of land, registry instruments, and deeds can be performed and signed electronically rather than in wet ink.

8. Notices under the Conveyancing Act can now be served electronically.

Conclusion

Please note that these changes are yet to come into effect and will be proclaimed sometime this year. Should you require any assistance or wish to discuss this, please contact Priority Business Lawyers on (02) 4305 3500.