Thinking of buying property off the plan in New South Wales?
It can be appealing — securing today’s price, enjoying something brand new, even choosing some of the finishes.
But off-the-plan purchases come with unique contract issues and risks. At Gryphon Lawyers, we help clients navigate these risks, so they can make informed choices and enjoy their homes without any stress.
What “Off the Plan” Means
When you buy off the plan, you agree to purchase a property before it has been built or registered. You rely on drawings, draft plans, and disclosures from the developer rather than a finished property.
Key Contract Features and Your Legal Rights
Below are some of the main legal protections and risks, buyers should know and understand in NSW.
Disclosure Statement & Draft Plan
Developers must provide you with a disclosure statement in a prescribed form, including a draft plan, proposed by-laws (if strata), and details of easements or covenants. If the disclosure is inaccurate or incomplete, buyers may have the right to rescind or claim compensation. (NSW Fair Trading)
Cooling-off Period
Off-the-plan contracts in NSW have a 10 business-day cooling-off period, longer than the usual five days. During this time, buyers can withdraw from the contract (usually forfeiting 0.25% of the purchase price). (NSW Fair Trading)
Sunset Clauses
These set a deadline for the developer to complete construction or register the plan. If this date passes, the contract can be potentially termination. In NSW, developers now need purchaser consent or a Supreme Court order to end a contract under the sunset clause. (NSW Legislation – Conveyancing Act 1919, s66ZL)
Material Changes
If changes during construction materially affect the property (lot size, common property, finishes), developers must notify purchasers. Buyers may rescind or claim compensation if they are materially disadvantaged. (NSW Fair Trading)
Deposits & Trust Accounts
Deposits and instalments must be held in a trust or controlled money account until settlement, protecting purchasers if a developer becomes insolvent. (NSW Fair Trading)
Major Risks to Be Aware Of
- Construction delays – Settlement can be pushed back, affecting finance approvals and moving plans.
- Market changes – The property value at completion may be lower than the contracted price.
- Developer discretion – Contracts often allow developers to vary finishes or design.
- Sunset clause risk – Termination can occur if deadlines are missed, though NSW law now limits this.
- Financial risks – Developer insolvency or cost overruns can jeopardise completion.
- Hidden costs – Strata levies, special contributions, and council charges may be higher than expected.
How to Protect Yourself
- Get contracts reviewed early on by a property lawyer.
- Check the developer’s track record for previous delays or disputes.
- Understand every clause — especially those covering changes, delays, and termination.
- Budget for extras and delays, not just the purchase price.
- Verify disclosure documents carefully against final plans.
- Use the cooling-off period wisely for finance, legal advice, and inspections.
Final Thoughts
Buying off the plan can deliver a brand-new property tailored to modern living, but it carries risks that shouldn’t be overlooked. The contract is, therefore, central to protecting your investment.
If you’re considering buying off the plan, Gryphon Lawyers can help you review your contract, explain your rights under NSW law, and protect you from unpleasant surprises.
