Sale of Land Amendment Act 2019

Authorised by the Chief Parliamentary Counsel Authorised Version i Sale of Land Amendment Act 2019 No. 14 of 2019 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 3 Principal Act 2 Part 2—Amendments to the Sale of Land Act 1962 3 4 Definitions—Section 2 3 5 Sale of land prior to approval of plan 5 6 Disclosure of works 6 7 Amendments to plan 7 8 Possession 7 9 Rescission of an off-the-plan contract 8 10 Repayment of deposit moneys 8 11 Amendment affecting pre-sold lots 9 12 New sections 10A to 10E inserted 9 13 New section 10F inserted 12 14 Offences in relation to the sale of land 13 15 New section 12A inserted 13 16 Regulations 13 17 Definitions—Section 23 14 18 What is a terms contract? 14 19 New section 29AB inserted 14 20 New sections 29EA to 29EC inserted 15 21 Purchaser may avoid prohibited terms contract 16 22 New Divisions 5 and 6 of Part I inserted 17 23 Definitions—Section 30 22 24 Definitions—Section 33 22 25 New Division heading inserted in Part 3 22 26 New Division 2 of Part 3 inserted 22 27 Residential off-the-plan contracts and sunset clauses 23 28 New sections 55 to 57 inserted 23 Part 3—Amendments to other Acts 29 29 ANZAC Day Act 1958—New section 5AB inserted 29 30 Estate Agents Act 1980—Payments out of Fund 29 -- 1 of 33 -- Section Page ii Authorised by the Chief Parliamentary Counsel Part 4—Repeal of amending Act 30 31 Repeal of amending Act 30 ═════════════ Endnotes 31 1 General information 31 -- 2 of 33 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Sale of Land Amendment Act 2019† No. 14 of 2019 [Assented to 4 June 2019] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The purposes of this Act are— (a) to amend the Sale of Land Act 1962— (i) to provide for restrictions on the use of sunset clauses in certain off-the-plan contracts; and (ii) to prohibit the use of certain terms contracts and rent-to-buy arrangements; and Victoria -- 3 of 33 -- Part 1—Preliminary Sale of Land Amendment Act 2019 No. 14 of 2019 2 Authorised by the Chief Parliamentary Counsel (iii) to regulate money paid in respect of options to purchase land under land banking schemes; and (iv) to make consequential and other amendments; and (b) to amend the ANZAC Day Act 1958 to impose restrictions on public auctions on ANZAC Day; and (c) to amend the Estate Agents Act 1980 in respect of payments that may be made from the Victorian Property Fund. 2 Commencement (1) This Part comes into operation on the day that this Act receives the Royal Assent. (2) Sections 4(1), 12(1), 25 and 26 are taken to have come into operation on 23 August 2018. (3) Sections 5 to 11, 12(2) and (3) and 27 come into operation on the day after the day on which this Act receives the Royal Assent. (4) Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision referred to in subsection (4) does not come into operation before 1 March 2020, it comes into operation on that day. 3 Principal Act In this Act, the Sale of Land Act 1962 is called the Principal Act. -- 4 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendments to the Sale of Land Act 1962 4 Definitions—Section 2 (1) In section 2(1) of the Principal Act insert the following definitions— "occupancy permit means an occupancy permit issued under Part 5 of the Building Act 1993; off-the-plan contract means a contract for the sale of a lot on a plan of subdivision (whether the plan is certified or not) where the plan has not been registered under section 22 of the Subdivision Act 1988; residential off-the-plan contract means an off-the-plan contract where the lot is proposed to be used for residential purposes; sunset clause means a provision of a residential off-the-plan contract that provides for the contract to be rescinded if— (a) the relevant plan of subdivision in respect of the lot has not been registered by the sunset date; or (b) an occupancy permit has not been issued in respect of the lot by the sunset date; sunset date means a date that is— (a) specified in a residential off-the-plan contract as the latest date by which the relevant plan of subdivision must be registered or the occupancy permit must be issued; or -- 5 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 4 Authorised by the Chief Parliamentary Counsel (b) an extension of the date referred to in paragraph (a) that is determined in accordance with the terms of the contract;". (2) In section 2(1) of the Principal Act insert the following definitions— "agricultural land means land used primarily for agricultural or pastoral purposes, regardless of whether the land is also used for commercial or residential purposes; Australian financial services licence has the same meaning as in Chapter 7 of the Corporations Act; estate agent has the same meaning as in the Estate Agents Act 1980; financial product has the same meaning as in Chapter 7 of the Corporations Act; land banking scheme means a scheme for the proposed development of land by the subdivision of that land, under which— (a) members contribute money or money's worth as consideration to acquire rights to benefits produced by the scheme, whether the rights are actual, prospective or contingent, and regardless of whether the rights are enforceable; and (b) members (other than the scheme's proponent) do not have day-to-day control or oversight of the operation of the scheme, regardless of whether they have the right to be consulted or to give directions; and -- 6 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 5 Authorised by the Chief Parliamentary Counsel (c) members (other than the scheme's proponent) do not have a proprietary interest in a material part of, or all of, the land that is the subject of the proposed development— but does not include the development of land under an off-the-plan contract; licensed estate agent has the same meaning as in the Estate Agents Act 1980; registered managed investment scheme means a scheme registered by ASIC under section 601EB of the Corporations Act; rent-to-buy arrangement means an arrangement that involves a person entering into one or more contracts that provide for— (a) a right of, or obligation on, that person to purchase residential land; and (b) payment of rent or any other amount by that person in respect of a period of occupation of the residential land for more than 6 months before the right to purchase that land may be exercised or the purchase of the land completed; residential land means land that is used or intended to be used for residential purposes;". 5 Sale of land prior to approval of plan (1) In section 9AA(1) of the Principal Act, for "A person shall not sell a lot in a plan of subdivision (whether certified or not) to anyone except a statutory body or authority if the plan has not been registered by the Registrar" substitute "A vendor must not enter into an off-the-plan contract with any person, except a statutory body or authority". -- 7 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 6 Authorised by the Chief Parliamentary Counsel (2) In section 9AA(1)(a) of the Principal Act, for "contract for the sale of that lot" substitute "off-the-plan contract". (3) In section 9AA(1A) of the Principal Act, for "A contract for the sale of a lot referred to in subsection (1)" substitute "An off-the-plan contract". (4) In section 9AA(1A)(b) of the Principal Act, for "contract for sale" substitute "off-the-plan contract". (5) In section 9AA(1A)(c) of the Principal Act, for "contract for sale of that lot" substitute "off-the-plan contract". (6) In section 9AA(2) of the Principal Act, for "a prescribed contract of sale of a lot" substitute "an off-the-plan contract". (7) In section 9AA(5) of the Principal Act, for "a prescribed contract" substitute "an off-the-plan contract". (8) Section 9AA(7) of the Principal Act is repealed. 6 Disclosure of works (1) In section 9AB(1) of the Principal Act— (a) for "shall disclose" substitute "must disclose"; (b) for "a prescribed contract of sale of a lot" substitute "an off-the-plan contract"; (c) after "in the lot" insert "to which the contract relates". (2) In section 9AB(2) of the Principal Act— (a) for "a prescribed contract of sale of a lot shall disclose" substitute "an off-the-plan contract must disclose"; -- 8 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 7 Authorised by the Chief Parliamentary Counsel (b) after "in the lot" insert "to which the contract relates"; (c) for "the prescribed contract of sale" substitute "the off-the-plan contract". (3) In section 9AB(3) of the Principal Act, for "shall make" substitute "must make". (4) In section 9AB(4) of the Principal Act, for "the vendor shall" substitute "the vendor must". (5) In section 9AB(4)(c) of the Principal Act, for "prescribed contract of sale" substitute "off-the-plan contract". (6) In section 9AB(5) of the Principal Act, for "a prescribed contract of sale" substitute "an off-the-plan contract". 7 Amendments to plan (1) In section 9AC(1) of the Principal Act, for "a prescribed contract" substitute "an off-the-plan contract". (2) In section 9AC(2) of the Principal Act, for "a prescribed contract of sale" substitute "an off-the-plan contract". 8 Possession (1) In section 9AD(1) of the Principal Act, for "a prescribed contract of sale" substitute "an off-the-plan contract". (2) In section 9AD(2) of the Principal Act, for "a prescribed contract of sale shall not" substitute "an off-the-plan contract must not". (3) In section 9AD(3) of the Principal Act— (a) for "The vendor shall allow" substitute "The vendor must allow"; -- 9 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 8 Authorised by the Chief Parliamentary Counsel (b) for "a prescribed contract of sale" substitute "an off-the-plan contract". 9 Rescission of an off-the-plan contract (1) Insert the following heading to section 9AE of the Principal Act— "Rescission of an off-the-plan contract". (2) In section 9AE(1) of the Principal Act— (a) for "a prescribed contract of sale of a lot" substitute "an off-the-plan contract"; (b) for "the contract of sale" substitute "the off-the-plan contract". (3) In section 9AE(2) of the Principal Act, for "the prescribed contract of sale of a lot on that plan of subdivision" substitute "an off-the-plan contract for the sale of a lot on that plan of subdivision". 10 Repayment of deposit moneys (1) In section 9AF(1)(a) of the Principal Act— (a) for "a prescribed contract of sale of a lot" substitute "an off-the-plan contract"; (b) for "the vendor shall be immediately entitled" substitute "the vendor is immediately entitled". (2) In section 9AF(1)(b) of the Principal Act— (a) for "a prescribed contract of sale of a lot" substitute "an off-the-plan contract"; (b) for "the purchaser shall be entitled" substitute "the purchaser is entitled". -- 10 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 9 Authorised by the Chief Parliamentary Counsel 11 Amendment affecting pre-sold lots (1) In section 10(1) of the Principal Act, for "a prescribed contract of sale of a lot" substitute "an off-the-plan contract for the sale of a lot on the plan of subdivision". (2) In section 10(2) of the Principal Act, for "A contract of sale" substitute "An off-the-plan contract". 12 New sections 10A to 10E inserted (1) After section 10 of the Principal Act insert— "10A Residential off-the-plan contracts and sunset clauses If a sunset clause in a residential off-the-plan contract purports to automatically rescind the contract on the part of the vendor, the sunset clause is taken to permit the contract to be rescinded on the part of the vendor on or after the sunset date, in accordance with this Division. 10B Power of vendor to rescind a residential off-the-plan contract under sunset clause (1) A vendor must not rescind a residential off-the-plan contract under a sunset clause in that contract except as provided for in this Division. (2) Subject to subsection (3), a vendor may rescind a residential off-the-plan contract under a sunset clause if— (a) the relevant plan of subdivision has not been registered by the sunset date; or (b) an occupancy permit has not been issued by the sunset date. -- 11 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 10 Authorised by the Chief Parliamentary Counsel (3) Before rescinding a residential off-the-plan contract under a sunset clause, the vendor must obtain the written consent of each purchaser to the rescission after giving each purchaser, at least 28 days before the proposed rescission, written notice setting out— (a) the reason why the vendor is proposing to rescind the contract; and (b) the reason for the delay in the registration of the plan of subdivision or the issuing of the occupancy permit; and (c) that the purchaser is not obliged to consent to the proposed rescission. 10C Inconsistent provision of no effect A provision of a residential off-the-plan contract has no effect to the extent that it is inconsistent with sections 10A and 10B. 10D Purported rescission a breach of a residential off-the-plan contract The purported rescission of a residential off-the-plan contract in contravention of this Division is taken to be a breach of that contract.". (2) After section 10D of the Principal Act insert— "10E Vendor may obtain order of Supreme Court to rescind (1) A vendor under a residential off-the-plan contract that contains a sunset clause may apply to the Supreme Court for an order permitting the vendor to rescind the contract under the sunset clause. -- 12 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 11 Authorised by the Chief Parliamentary Counsel (2) On the application of a vendor under subsection (1), the Supreme Court may make an order permitting the vendor to rescind the residential off-the-plan contract if the Court is satisfied that making the order is just and equitable in all the circumstances. (3) In determining whether to make an order under subsection (2), the Supreme Court must have regard to— (a) the terms of the residential off-the-plan contract; and (b) whether the vendor has acted unreasonably or in bad faith; and (c) the reason for the delay in registering the relevant plan of subdivision or in an occupancy permit being issued; and (d) the likely date on which the relevant plan of subdivision will be registered or the occupancy permit will be issued; and (e) whether the lot that is the subject of the residential off-the-plan contract has increased in value; and (f) the effect of the rescission on each purchaser; and (g) any other matter that the Court considers to be relevant; and (h) any other prescribed matter. (4) If the Supreme Court makes an order under subsection (2), the Court may make any other order it considers just and equitable in all the circumstances, including an order for reasonable compensation of the purchaser. -- 13 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 12 Authorised by the Chief Parliamentary Counsel (5) The vendor is liable to pay the costs of a purchaser in relation to the proceeding for an order under this section unless the vendor satisfies the Supreme Court that the purchaser unreasonably withheld consent to the rescission of the residential off-the-plan contract under the sunset clause.". (3) In section 10C of the Principal Act, for "10A and 10B" substitute "10A, 10B and 10E". 13 New section 10F inserted After section 10E of the Principal Act insert— "10F Information to be included in sunset clause (1) Subject to subsection (2), a sunset clause in a residential off-the-plan contract must include a statement that— (a) the vendor is required to give notice of a proposed rescission of the contract under the sunset clause; and (b) the purchaser has the right to consent to the proposed rescission of the contract but is not obliged to consent; and (c) the vendor has the right to apply to the Supreme Court for an order permitting the vendor to rescind the contract; and (d) the Supreme Court may make an order permitting the rescission of the contract if satisfied that making the order is just and equitable in all the circumstances. Penalty: For a natural person, 240 penalty units; For a body corporate, 1200 penalty units. -- 14 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 13 Authorised by the Chief Parliamentary Counsel (2) Subsection (1) does not apply to a residential off-the-plan contract entered into before the date on which this section comes into operation.". 14 Offences in relation to the sale of land (1) In section 12(d) of the Principal Act, for "fraudulently" substitute "knowingly". (2) In section 12 of the Principal Act, for "50 penalty units" substitute "120 penalty units". 15 New section 12A inserted After section 12 of the Principal Act insert— "12A Guidelines (1) The Director of Consumer Affairs Victoria may make guidelines to assist vendors of land and their agents to understand what a material fact is likely to be for the purposes of section 12(d). (2) A court may have regard to any guidelines made under subsection (1).". 16 Regulations At the end of section 17 of the Principal Act insert— "(2) Without limiting subsection (1), for the purposes of section 29WA(b), the Governor in Council may make regulations for or with respect to requirements for rent-to-buy arrangements, in particular— (a) money paid for or with respect to the rights or obligations that are the subject of such arrangements, including the following— (i) the holding of the money on trust on behalf of purchasers; -- 15 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 14 Authorised by the Chief Parliamentary Counsel (ii) the money being held in interest bearing accounts; (iii) other matters as to interest on the money, including the application of the interest and dealing with the interest if the purchaser's right is not exercised; and (b) the inclusion of certain conditions in rent-to-buy arrangements, including conditions for or with respect to any obligation in the arrangement on a purchaser to purchase any land that is the subject of the arrangement; and (c) any other requirements as to the effect of, or terms and conditions of, rent-to-buy arrangements.". 17 Definitions—Section 23 In section 23 of the Principal Act— (a) in the definition of deposit moneys, for "contract;" substitute "contract."; (b) the definition of estate agent is repealed. 18 What is a terms contract? In section 29A(1A) of the Principal Act, for "for the sale of land" substitute "for the sale and purchase of any land". 19 New section 29AB inserted Before section 29B of the Principal Act insert— "29AB Definitions In this Subdivision— prescribed amount means the amount prescribed by the regulations for the purposes of this Subdivision; -- 16 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 15 Authorised by the Chief Parliamentary Counsel sale price, in relation to a terms contract, means the price of the land that is specified in the contract, however expressed, less any discount or rebate that is specified in the contract, whether or not the discount or rebate is contingent.". 20 New sections 29EA to 29EC inserted After section 29E of the Principal Act insert— "29EA Additional prohibited terms contracts A person must not knowingly sell any residential land (other than residential land that is agricultural land) under a terms contract where the sale price of the land is less than the prescribed amount. Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units. 29EB Offence to arrange, broker or induce certain terms contracts (1) A person must not knowingly arrange or broker the sale of any residential land (other than residential land that is agricultural land) under a terms contract where the sale price of the land is less than the prescribed amount. Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units. -- 17 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 16 Authorised by the Chief Parliamentary Counsel (2) A person must not knowingly induce another person to enter into a sale of any residential land (other than residential land that is agricultural land) under a terms contract where the sale price of the land is less than the prescribed amount. Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units. 29EC Offence to advertise certain terms contracts A person must not knowingly advertise the sale of any residential land (other than residential land that is agricultural land) under a terms contract where the sale price of the land is less than the prescribed amount. Penalty: For a natural person, 120 penalty units; For a body corporate, 500 penalty units.". 21 Purchaser may avoid prohibited terms contract (1) In section 29F(1)(a) of the Principal Act, after "contract" (where secondly occurring) insert "by giving a signed written notice to the vendor". (2) After section 29F(2) of the Principal Act insert— "(2A) Subsection (2) does not apply if the land that is the subject of the contract is residential land (other than residential land that is agricultural land), the sale price of which is less than the prescribed amount.". -- 18 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 17 Authorised by the Chief Parliamentary Counsel (3) In section 29F(3) of the Principal Act, for "an occupation rent" substitute "a fair market rent". 22 New Divisions 5 and 6 of Part I inserted After Division 4 of Part I of the Principal Act insert— "Division 5—Rent-to-buy arrangements 29WA Application of Division This Division does not apply to— (a) a rent-to-buy arrangement that involves a contract entered into by— (i) the Director of Housing appointed under section 9(1) of the Housing Act 1983; or (ii) a registered housing association within the meaning of the Housing Act 1983; or (iii) a prescribed person or class of person; or (b) a rent-to-buy arrangement that complies with the requirements prescribed under section 17(2). 29WB Definitions In this Division— purchaser includes a person to whom a right is conferred, or on whom an obligation is imposed, to purchase residential land under a rent-to-buy arrangement; vendor includes a person on whom an obligation is imposed to sell, or who offers to sell, residential land under a rent-to-buy arrangement. -- 19 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 18 Authorised by the Chief Parliamentary Counsel 29WC Prohibition on rent-to-buy arrangements A person must not knowingly sell any residential land under a rent-to-buy arrangement. Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units. 29WD Offence to arrange, broker or induce rent-to-buy arrangement (1) A person must not knowingly arrange or broker the sale of any residential land under a rent-to-buy arrangement. Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units. (2) A person must not knowingly induce another person to enter into the sale of any residential land under a rent-to-buy arrangement. Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units. -- 20 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 19 Authorised by the Chief Parliamentary Counsel 29WE Offence to advertise rent-to-buy arrangements A person must not knowingly advertise the sale of any residential land under a rent-to-buy arrangement. Penalty: For a natural person, 120 penalty units; For a body corporate, 500 penalty units. 29WF Avoidance of certain rent-to-buy arrangements (1) A purchaser of residential land under a rent-to-buy arrangement may avoid a contract that is part of the arrangement by giving notice to the vendor. (2) A notice under subsection (1)— (a) may be given at any time before completion of the contract; and (b) must be in writing and signed by the purchaser. (3) If a rent-to-buy arrangement involves 2 or more contracts and a purchaser avoids a contract that is part of the arrangement, all of the contracts that are part of the arrangement are void. 29WG Return of money paid under contract to purchaser If a contract has been avoided by the purchaser under section 29WF, the purchaser is entitled to the return of all money paid by the purchaser under that contract and under any other contract in the rent-to-buy arrangement, except for a sum which represents a fair market rent for any -- 21 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 20 Authorised by the Chief Parliamentary Counsel period for which the purchaser occupied the land. Division 6—Options to purchase 29WH Options to purchase (1) A person (the vendor) must not sell to another person (the purchaser) an option to purchase land under a land banking scheme, except as provided for in this section. (2) Subsection (1) does not apply to— (a) an option to purchase land under a land banking scheme that is a registered managed investment scheme; or (b) an option to purchase land under a land banking scheme where the option is a financial product issued by the holder of an Australian financial services licence. (3) The money payable by the purchaser for the option must be paid to a legal practitioner, conveyancer or licensed estate agent acting for the vendor, to be held on trust for the purchaser until the earlier of— (a) the registration of a plan of subdivision in respect of the land or the lot; or (b) the expiry of the date by which the option must be exercised. (4) The agreement between the vendor and the purchaser in respect of an option to purchase land under a land banking scheme must provide that the money paid by the purchaser for the option is to be held on trust in accordance with subsection (3). -- 22 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 21 Authorised by the Chief Parliamentary Counsel (5) The agreement in respect of the option to purchase may be rescinded by the purchaser if subsection (3) or (4) is not complied with. (6) The vendor must notify the purchaser of the registration of a plan of subdivision in respect of the land under a land banking scheme. (7) Despite anything to the contrary in the agreement in respect of the option to purchase, the agreement expires if the event triggering the purchaser's right to exercise the option does not occur within 5 years of the entering into of the agreement. (8) The purchaser is entitled to the immediate return of any money paid under the agreement in respect of the option to purchase if— (a) the purchaser rescinds the agreement under subsection (5) or otherwise; or (b) the agreement has expired under subsection (7) or otherwise; or (c) the event triggering the purchaser's right to exercise the option does not otherwise occur. 29WI Offence to fail to transfer money A vendor must not fail to transfer any money paid by a purchaser for an option to purchase land under a land banking scheme to a legal practitioner, conveyancer or licensed estate agent in accordance with section 29WH(3). Penalty: For a natural person, 240 penalty units or imprisonment for 2 years or both; For a body corporate, 1200 penalty units.". -- 23 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 22 Authorised by the Chief Parliamentary Counsel 23 Definitions—Section 30 In section 30(1) of the Principal Act, the definition of estate agent is repealed. 24 Definitions—Section 33 In section 33 of the Principal Act, the definition of licensed estate agent is repealed. 25 New Division heading inserted in Part 3 After the heading to Part 3 of the Principal Act insert— "Division 1—Miscellaneous". 26 New Division 2 of Part 3 inserted After section 52 of the Principal Act insert— "Division 2—Sale of Land Amendment Act 2019 53 Definition In this Division— 2019 Act means the Sale of Land Amendment Act 2019. 54 Residential off-the-plan contracts and sunset clauses (1) On and after the commencement of section 12(1) of the 2019 Act, the amendments made to this Act by that subsection apply to a residential off-the-plan contract entered into before that commencement and in force immediately before that commencement. (2) Despite subsection (1), the amendment of this Act by section 12(1) of the 2019 Act does not apply to any proceeding concerning the effect or operation of a sunset clause in a residential off-the-plan contract which is -- 24 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 23 Authorised by the Chief Parliamentary Counsel commenced before the commencement of that subsection.". 27 Residential off-the-plan contracts and sunset clauses After section 54(2) of the Principal Act insert— "(3) On and after the commencement of section 12(2) and (3) of the 2019 Act, the amendments made to this Act by those subsections apply to a residential off-the- plan contract entered into before that commencement and in force immediately before that commencement. (4) Despite subsection (3), the amendment of this Act by section 12(2) and (3) of the 2019 Act does not apply to any proceeding concerning the effect or operation of a sunset clause in a residential off-the-plan contract which is commenced before the commencement of those subsections.". 28 New sections 55 to 57 inserted After section 54 of the Principal Act insert— "55 Residential terms contracts (1) In this section— old residential terms contract means a terms contract for the sale of any residential land entered into before the commencement of section 20 of the 2019 Act and in force immediately before that commencement, that would, if it were entered into on or after that commencement, be a terms contract to which sections 29EA to 29EC apply. (2) Despite the commencement of section 20 of the 2019 Act, the amendments made to this Act by sections 19, 20 and 21 of the 2019 -- 25 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 24 Authorised by the Chief Parliamentary Counsel Act do not apply to an old residential terms contract. (3) A purchaser under an old residential terms contract may apply to a court or to VCAT to terminate the contract. (4) In any proceeding on an application under subsection (3), the court or VCAT may order that the contract is terminated. (5) The court or VCAT must not make an order under subsection (4) unless the court or VCAT is satisfied that— (a) at the time the contract was entered into, there was a reasonable prospect that the purchaser would not be able to— (i) make or, at any time, continue to make the payments required under the contract; or (ii) obtain, on reasonable terms, the finance necessary to complete the contract; or (b) the purchaser no longer occupies the land purchased under the contract because the purchaser could not afford the payments required under the contract. (6) In addition to subsection (5), the court or VCAT must not make an order under subsection (4) unless the court or VCAT is satisfied that it is just and equitable for the contract to be terminated. (7) In addition to an order made under subsection (4), in any proceeding on an application under subsection (3), the court -- 26 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 25 Authorised by the Chief Parliamentary Counsel or VCAT may make an order providing for all or any of the following— (a) that the purchaser is relieved of any liability under the contract, including any liability for breach of any term or condition of the contract; (b) that the vendor must repay to the purchaser the whole or any part of the payments made by the purchaser under the contract, except for a sum that represents fair market rent for any period for which the purchaser was— (i) in actual possession of the land; or (ii) entitled to the receipt of rents and profits of the land. (8) The court or VCAT must not make an order under subsection (7) if the court or VCAT is satisfied that the order— (a) would result in undue financial hardship for the vendor; or (b) would otherwise not be just and equitable taking into account— (i) all the circumstances of the matter; and (ii) the nature and extent of any other person's or body's interest in the land. 56 Rent-to-buy arrangements (1) In this section— old rent-to-buy arrangement means an arrangement entered into before the commencement of section 22 of the 2019 Act and in force immediately before that commencement, that -- 27 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 26 Authorised by the Chief Parliamentary Counsel would, if it were entered into on or after that commencement, be a rent-to-buy arrangement to which Division 5 of Part I applies. (2) Despite the commencement of section 22 of the 2019 Act, Division 5 of Part I as inserted by that section does not apply to an old rent-to-buy arrangement. (3) A purchaser under an old rent-to-buy arrangement may apply to a court or to VCAT to terminate any contract that is part of the arrangement. (4) In any proceeding on an application under subsection (3), the court or VCAT may order that any contract that is part of the arrangement is terminated. (5) The court or VCAT must not make an order under subsection (4) unless the court or VCAT is satisfied that— (a) at the time the contract was entered into, there was a reasonable prospect that the purchaser would not be able to— (i) make or, at any time, continue to make the payments required under the contract; or (ii) obtain, on reasonable terms, the finance necessary to complete the contract; or (b) the purchaser no longer occupies the land purchased under the contract because the purchaser could not afford the payments required under the contract. -- 28 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 27 Authorised by the Chief Parliamentary Counsel (6) In addition to subsection (5), the court or VCAT must not make an order under subsection (4) unless the court or VCAT is satisfied that it is just and equitable for the contract to be terminated. (7) In addition to an order made under subsection (4), in any proceeding on an application under subsection (3), the court or VCAT may make an order providing for all or any of the following— (a) that the purchaser is relieved of any liability under the contract, including any liability for breach of any term or condition of the contract; (b) that the vendor must repay to the purchaser the whole or any part of the payments made by the purchaser under the contract, except for a sum that represents fair market rent for any period for which the purchaser was in possession of the land. (8) The court or VCAT must not make an order under subsection (7) if the court or VCAT is satisfied that the order— (a) would result in undue financial hardship for the vendor; or (b) would otherwise not be just and equitable taking into account— (i) all the circumstances of the matter; and (ii) the nature and extent of any other person's or body's interest in the land. -- 29 of 33 -- Part 2—Amendments to the Sale of Land Act 1962 Sale of Land Amendment Act 2019 No. 14 of 2019 28 Authorised by the Chief Parliamentary Counsel 57 Options to purchase Despite the commencement of section 22 of the 2019 Act, Division 6 of Part I as inserted by that section does not apply to any money paid in respect of an option to purchase land under a land banking scheme entered into before that commencement.". -- 30 of 33 -- Part 3—Amendments to other Acts Sale of Land Amendment Act 2019 No. 14 of 2019 29 Authorised by the Chief Parliamentary Counsel Part 3—Amendments to other Acts 29 ANZAC Day Act 1958—New section 5AB inserted After section 5A of the ANZAC Day Act 1958 insert— "5AB Public auctions on ANZAC Day (1) Subject to subsection (2), a person must not conduct a public auction of land or a business before 1 p.m. on ANZAC Day. Penalty: 100 penalty units. (2) Subsection (1) does not apply to an online public auction that has commenced but has not been completed before 1 p.m. on ANZAC Day. (3) This section applies despite anything in any other Act or statutory rule within the meaning of the Subordinate Legislation Act 1994. (4) In this section— public auction means an auction that is publicly advertised.". 30 Estate Agents Act 1980—Payments out of Fund In section 75(1)(f) of the Estate Agents Act 1980, for "or the Rooming House Operators Act 2016" substitute ", the Rooming House Operators Act 2016 or the Sale of Land Act 1962". -- 31 of 33 -- Part 4—Repeal of amending Act Sale of Land Amendment Act 2019 No. 14 of 2019 30 Authorised by the Chief Parliamentary Counsel Part 4—Repeal of amending Act 31 Repeal of amending Act This Act is repealed on 1 March 2021. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ -- 32 of 33 -- Endnotes Sale of Land Amendment Act 2019 No. 14 of 2019 31 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 21 March 2019 Legislative Council: 2 May 2019 The long title for the Bill for this Act was "A Bill for an Act to make various amendments to the Sale of Land Act 1962 in relation to off-the- plan contracts, terms contracts, rent-to-buy arrangements and options to purchase land under land banking schemes, to amend the ANZAC Day Act 1958 to impose restrictions on public auctions, and to amend the Estate Agents Act 1980 in respect of payments that may be made from the Victorian Property Fund and for other purposes." -- 33 of 33 --