Sunset Clauses Under the Spotlight: A Win for Off-the-Plan Property Buyers

The process of selling a horse can be chaotic and emotional, and often people do not realise the legal implications that come along with a sale which can last into the future. There are several factors which should be taken into consideration early on to ensure the process runs smoothly, and you are not caught by surprise down the track. Representations Representations are statements made to describe the horse. This could be its temperament, behavioural history, riding suitability or soundness. In most sales, representations are initially made in the horse’s advertisement post but also continue through text messages or calls with potential buyers, and statements made in person. Each of these representations have the capacity to be used against you in the future, if the matter results in a dispute. It is common practice for sellers to describe the horse in a positive way to entice buyers to interact with the sale ad, however it is important to ensure statements made can be supported by evidence, and to understand the meaning behind the words used to describe the horse. A blanket statement such as, “a pleasure to ride” is a representation that the horse is easy and enjoyable to ride, which has no specificity and makes no allowance for any ‘quirks’ the horse may have. A horse that is a pleasure to ride in the arena, but spooky or excitable when ridden off property, should be described as such in an open and easy to understand manner. Australian Consumer Law Some horse sales may be subject to Australian Consumer Law, particularly where the seller is selling horses as part of a business or commercial activity, rather than as a one-off private sale. To identify which category you fall into, consider whether the sale of horses is a regularly repeated exercise for the purpose of making a profit. In the alternative, selling your child’s pony because they have outgrown them, as a one-off sale, would generally not be considered a commercial activity. When Australian Consumer Law applies, the buyer may have certain protections, including around the horse’s quality, condition and whether any known issues were properly disclosed. There is also a requirement that the horse is fit for any disclosed purpose. If a buyer were to advise you that they were looking for a horse for their young, beginner child to take show jumping, and you proceed with the sale, you have an obligation to ensure the horse is suitable for that purpose.  Consumer guarantees apply to most purchases of goods, however there is a monetary threshold of $100,000.00. Purchases exceeding that amount remain covered if they are acquired for personal or domestic use. The sale of highly trained performance horses may exceed the threshold amount, but in the event the horse is being acquired for personal use, the sale will generally still be required to comply with consumer guarantees. As each situation is different, it is important to seek advice about how these obligations may apply to your circumstances. To minimise risk and to prioritise a successful sale, you should make your own enquiries as to the suitability of your horse for a potential buyer. By asking them about their experience and intended use for the horse, particularly in writing, you will minimise the risk of inadvertently selling them an unsuitable horse, and you will be able to evidence your efforts to create a successful partnership. Contract of Sale A properly drafted contract is one of the best ways to minimise risk when selling a horse. By having one, you can ensure that representations made by you are clearly documented, and that the buyer signs to agree to those representations. You cannot contract out of your legal obligations under Australian Consumer Law to describe the horse accurately and correctly, but your contract can ensure there is clear record of what was agreed between the parties. This will include the purchase price and any deposit payable, the buyer’s opportunity to arrange a vet check and trainer assessment prior to purchase, and any conditions around the period between execution and purchase, such as ongoing agistment or a trial period. Your sale contract can also define key terms such as when the purchase price becomes payable, the timing that risk passes from the seller to the buyer, and what will occur if the horse is unsuitable, and the buyer wishes to return it. In many cases, the sale process is not instantaneous, and your contract of sale will provide you protection throughout the time from signing to the horse being collected, and into the future. A contract of sale additionally acts as evidence of ownership in circumstances where the horse may not be otherwise registered to record ownership, or for the time whilst you are waiting for registration to complete. Evidence of ownership may be required to obtain insurance over the horse, to secure agistment in some circumstances, or for resale purposes in the future. Managing buyer enquiries, negotiations and paperwork can feel overwhelming, especially when selling your horse is already an emotional decision. Getting advice early can help you identify risks before they become problems, clearly record what has been agreed, and move through the process with greater confidence and peace of mind. If you are preparing to sell a horse and want to feel confident before finalising the arrangement, contact CJM Lawyers to discuss how we can help. Disclaimer: This article provides general information only and does not constitute legal advice. The information may not apply to your circumstances and should not be relied on as a substitute for tailored legal advice. If you need advice, please contact CJM Lawyers to speak with one of our legal professionals.