Buying a property off-the-plan can be appealing. You secure a brand-new home or investment, often at today’s prices, with time to arrange finance before construction finishes.
But these contracts differ significantly from ordinary property purchases. They run for years, depend on the developer’s performance, and are governed by strict NSW legislation.
This guide explains how off-the-plan purchases work, what must be disclosed, and the main legal issues buyers should understand before signing.
What Does “Off-the-Plan” Mean?
An off-the-plan purchase occurs when you agree to buy a property that does not yet have a separate title or registered plan. It may still be under construction, or only exist on the architect’s drawings.
You pay a deposit now, and settlement occurs once the strata plan or plan of subdivision is registered and an occupation certificate is issued.
Developers market these properties early to raise capital and lock in buyers before completion.
The Legal Framework
Off-the-plan sales in NSW are regulated by:
Conveyancing Act 1919 (NSW) – Part 4 Division 10;
Conveyancing (Sale of Land) Regulation 2022 (NSW); and
Amendments to this legislation that introduced mandatory disclosure statements, notice obligations, and rescission rights for buyers.
These reforms ensure buyers receive sufficient information before exchange and are protected from unilateral changes by developers.
A property lawyer confirms that the contract complies with these rules and that your rights are clearly set out.
What Must Be Disclosed
Every off-the-plan contract must include:
A disclosure statement summarising key features of the proposed development;
A copy of the draft plan of subdivision or strata plan;
Draft by-laws, any proposed easements or restrictions;
A schedule of finishes; and
The sunset date and estimated completion timeframe.
If the developer later changes the disclosure documents in a way that materially affects the property’s use or value, they must give written notice to the buyer at least 21 days before completion.
The buyer may then rescind the contract or claim compensation.
Sunset Clauses and Delays
A sunset clause sets the latest date by which the plan must be registered or an occupation certificate issued.
Past misuse of sunset clauses led to reforms: a developer cannot rescind under a sunset clause without either the buyer’s written consent or Supreme Court approval.
Buyers should check that:
The sunset date is realistic;
The reasons for extension are reasonable; and
The clause cannot be used to end the contract solely for the developer’s advantage.
Delays can affect finance approvals and stamp-duty timing, so it’s important to get advice from an experienced property lawyer on delays and extensions.
Finance and Deposit Arrangements
Most lenders will not advance funds for the purchase until the title is registered. Pre-approvals often expire long before settlement, so buyers may need to re-apply or re-assess affordability if interest rates change.
Key points to check:
The deposit (usually 10%) must be paid to a stakeholder, such as the developer’s solicitor or agent’s trust account, not directly to the developer.
The deposit remains in trust until completion.
The contract should specify what happens if the project falls through.
Your conveyancing lawyer can advise on these provisions and ensure that your deposit is being held by the right stakeholder.
Changes to Plans and Finishes
Construction projects frequently evolve. Minor variations may be unavoidable, but major ones can change what the buyer receives.
Under the Conveyancing Act 1919 (NSW), if a change materially prejudices the buyer, they may rescind or seek compensation.
Once plans are registered, your property lawyer will compare the final registered plan with the draft to confirm that lot size, layout and boundaries are consistent.
Cooling-Off and Settlement Periods
Off-the-plan contracts have a 10-business-day cooling-off period, double the usual five days. The buyer may rescind within that period (forfeiting 0.25% of the price).
Settlement occurs after the plan is registered and the occupation certificate issued, not on a fixed date.
The developer must give at least 21 days’ written notice before settlement.
Because registration and certification dates can shift, buyers should ensure their lender and lawyer are ready to act promptly once notice is received.
Key Risks to Watch For
Market movement: property values can fall between exchange and completion. This can cause issues for finance.
Defects: new buildings can suffer from construction issues; check statutory warranty periods and the builder’s track record.
Budget underestimation: initial strata or community association levies may rise once the building operates.
Finance expiry: long project timelines can outlast pre-approvals.
Sunset extensions: ensure any extension clause is properly drafted.
An experienced lawyer identifies these risks before you commit and negotiates appropriate protections.
Practical Steps Before You Sign
Seek independent legal advice — never rely solely on the developer’s representative.
Review the disclosure statement, draft plan and finishes to confirm what is included.
Check the by-laws (for strata or community title projects) for restrictions on pets, parking or renovations.
Ask about the developer’s and builder’s track record, licence, and insurance.
Understand the timeline — registration, notice period and sunset date — and how finance approvals will align.
Confirm what happens if the project is delayed or if you cannot complete due to changed circumstances.
Internal link: Buying Property in NSW.
Why Legal Advice Matters
Off-the-plan contracts are lengthy and technical. They contain clauses about defects, registration, valuation, and rescission that can materially affect your rights.
A property lawyer will:
Explain each clause in plain language;
Check that statutory disclosures and notices meet the Conveyancing Act requirements;
Negotiate amendments to protect your deposit and limit the developer’s ability to vary terms;
Ensure all timeframes and notice provisions are workable; and
Monitor compliance through to completion.
Having a lawyer involved from the start prevents problems that can’t be fixed later.
Conclusion
Buying off-the-plan can deliver a modern home or investment, but it requires trust in a contract that will run for years.
Understanding the disclosure, timing and risk provisions before you sign is essential.
Speak to a specialist property lawyer
Our property law team includes multiple Accredited Specialists in Property Law who advise both buyers and property developers across Sydney and NSW on off-the-plan contracts.
Before you commit to a purchase, give us a call or submit an enquiry to have your contract reviewed.
