Australia: Critical Changes to Land Sales Act


Changes have been made to the Land Sales Act 1984 (Qld) (LSA) by the Sustainable Planning & Other Legislation Amendment Act 2011 that are of critical importance to developers of product sold off-the-plan in Queensland. The Act passed is yet to receive Royal Assent.

Norton Rose Australia and its client, Juniper Development Group, have played a key role in advocating for these changes. After receiving submissions from and meeting with Norton Rose Australia and Juniper Development Group, and consulting industry stakeholders, the Government has closed a loophole that jeopardised the enforcement of sales contracts following a buyer's default.

Section 27 of the LSA requires that a transfer capable of immediate registration be delivered to a buyer under an off-the-plan contract within a set statutory period, being 31/3 years or 51/2 years if extended by regulation. If the seller has not given the transfer capable of immediate registration to the buyer in that timeframe the buyer may avoid the contract.

The concern was that a buyer who failed to settle a contract could still avoid a contract that remained on foot while a seller sought specific performance orders in Court.

Policy Intention

The policy intention of the LSA is that there must be a sunset date for delivery of title to off-the-plan lots the subject of sales contracts. In the normal course, a developer would register the plan of subdivision and give notice requiring settlement to occur a short time after registration occurs. Usually, that time period is between 14 and 30 days after registration. This process needs to occur within the LSA period of 31/2 years or 51/2 years, as applicable.

Impact of Market Conditions

In recent times, with changing market conditions and higher rates of buyer default, many sellers have been faced with the buyers failing to complete contracts. The seller's remedies are then to either terminate the contract, forfeit the deposit and claim damages or to seek specific performance of the contract to compel the defaulting buyer to buy the relevant lot.

Risk to Developers and Financiers

Where a seller seeks specific performance, the contract remains on foot pending the outcome of Court proceedings. If the LSA time period for delivery of a transfer passed before matters in dispute were determined by the Court, the buyer may have been able to avoid the contract relying on its rights under the LSA, regardless of the buyer's contractual default.

Such an outcome would be inconsistent with the principle that a defaulting party should not be able to rely upon its own default to found a right to avoid the contract.

Once the seller creates title to the lot and properly tenders the transfer at settlement, the seller can do no more to satisfy its obligations under the contract and the LSA. No policy objective would have been served by allowing the LSA to continue to apply where a seller had created title and was ready, able and willing to settle.

The ambiguity in the LSA meant that a seller would risk losing all contractual entitlements flowing from the buyer's default. The only option for the seller to preserve its rights would have been to terminate the contract and pursue a damages claim. A seller could not take the chance that a Court would prevent a buyer relying on its own default to found an avoidance right under the LSA as a matter of policy. In a depressed market re-selling would not be preferable, particularly where a defaulting buyer had sufficient assets and capacity to complete the contract but was simply attempting to avoid its obligation to settle or obtain concessions from the seller.

For new developments, ambiguity in the legislation that potentially limited the ability of a seller or developer to enforce pre-sales contracts would weaken the underwriting value of those pre-sales as security for development finance. Financiers might not credit pre-sales contracts as security for development funding if the rights to enforce those pre-sales contracts and compel a buyer to complete under the contract could be limited by the LSA even where the buyer defaulted under its contract.

Buyers Protected

If a buyer has legitimate grounds for not completing the contract, those grounds can be tested in Court in the ordinary course of litigation and the buyer will not be divested of any right in respect of a seller's breach of contract.

The mandatory statutory sunset date and the buyer's right to avoid if a developer is not able to create title and deliver the transfer within the relevant statutory period remain.

Government Action

The Government and the Opposition are to be applauded for a bipartisan approach to closing this loophole and ensuring that the integrity of pre-sales contracts, is not undermined. Sellers already have to comply with a significant range of consumer protection legislation relating to pre-sales disclosure and form.

The legislation has now been amended to limit a buyer's right to avoid a contract under section 27 of the LSA where the seller has not given a transfer in the statutory period because of the buyer's default. This is consistent with the legal principle that a defaulting party should not be able to rely on its own default to found a right of action.

Further Amendments

Further amendments to the LSA are proposed to allow for parties to fix a contractual date for the delivery of a transfer. Those changes are consistent with returning discretionary rights to the contracting parties and will also, if passed, be beneficial in allowing developers to set realistic timeframes for the delivery of projects, taking into account the circumstances of particular projects, their complexity and construction timeframes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.