Why Off-the-Plan Contracts Need a Solicitor Before You Sign
An off the plan contract is not like a standard purchase contract. It is longer, it is prepared by the developer’s lawyers to protect the developer, and it commits you to a purchase that may not complete for a year or more. We review the contract before you sign, explain the parts that carry real risk, and negotiate changes where we can, so you are not signing away protections you did not know you had. If you are weighing up whether to use a solicitor or a conveyancer, see our guide to the difference between a solicitor and a conveyancer in NSW.
Sunset Clauses and Your Protections in NSW
A sunset clause allows the contract to be ended if the property is not completed and given its own title by a set date, known as the sunset date. In the past, some developers deliberately delayed projects to trigger the sunset clause and resell at a higher price. Since changes to the Conveyancing Act 1919 that commenced in 2015, a developer can only rescind under a sunset clause with the buyer’s written consent or an order of the Supreme Court of NSW, and must give at least 28 days notice explaining why. We check that the sunset date is realistic before you sign, and we advise you on your rights if it approaches.
The Key Risks We Check in an Off-the-Plan Contract
- Deposit protection: your deposit, commonly 10% of the price, should be held in a trust account or covered by a deposit bond, not released to the developer. We confirm how your deposit is held.
- Variations and finishes: the contract often lets the developer change the design, size, finishes or materials within set tolerances. We check what can change, and by how much, before you commit.
- Developer insolvency: if the developer fails during construction, your purchase and your deposit can be at risk. We review the developer’s rights and your protections.
- Defects and final inspection: we advise on your right to a pre-settlement inspection and how any defects are to be fixed.
- Occupation certificate and title: settlement cannot complete until an occupation certificate is issued and your lot is registered with its own title. We confirm these are in place before you are asked to settle.
- Finance timing: a pre-approval can lapse before completion, and your lender values the property at completion rather than at today’s price. We help you plan for the gap.
The Off-the-Plan Process, Step by Step
Step 1: Contract review before you sign
Send the contract to us before you commit. A 10 business day cooling-off period applies to off the plan contracts in NSW, but it is far easier to negotiate changes before you sign than to unwind a contract afterwards, so this review is your best opportunity to understand and improve your position.
Step 2: Exchange and deposit
On exchange you pay the deposit. We confirm it is held in a trust account or by a deposit bond, and we diarise the sunset date and any key milestones.
Step 3: During construction
We monitor the sunset date and respond to any variation notices or other notices from the developer, keeping you informed of anything that affects your rights.
Step 4: Completion and inspection
When the building is finished, we check the occupation certificate, the registered plan and your separate title, and arrange your pre-settlement inspection so defects can be raised before settlement.
Step 5: Settlement
Settlement usually occurs a set number of days after the developer notifies you that your lot is registered, and is completed electronically through PEXA. We calculate the adjustments and complete the transfer so the property is registered in your name.
First Home Buyers and New Builds
New and off the plan homes can qualify for first home buyer help in NSW, including the First Home Buyers Assistance Scheme and the First Home Owner Grant, which applies to new homes. Eligibility rules and limits change from time to time, so we check the current position for your purchase. See our buying property page for more detail, and Revenue NSW for the latest figures.
Buying Off the Plan in Maitland and the Hunter Valley
New estates and developments are common across Thornton, Chisholm, Maitland and the greater Newcastle area, so off the plan buying is a regular part of the Hunter market. As a long-established local firm, we bring genuine knowledge of the area and the kinds of issues that arise in local developments.
Fixed-Price Conveyancing for Off-the-Plan Buyers
We offer fixed-price conveyancing for most off the plan purchases, so you know our fee before we start. Because off the plan matters can run for a long time and involve extra steps, such as monitoring the sunset date, reviewing variations and checking completion, we will explain what is included and give you a clear estimate for anything outside the standard process.
Frequently Asked Questions About Buying Off the Plan in NSW
What is a sunset clause, and can a developer cancel my contract?
A sunset clause lets the contract be ended if the property is not completed and titled by the sunset date. Since 2015, a developer can only rescind under a sunset clause with your written consent or an order of the Supreme Court of NSW, and must give at least 28 days notice with reasons. We check the sunset date before you sign and advise you if it approaches.
Is there a cooling-off period when buying off the plan?
Yes. In NSW a 10 business day cooling-off period applies to off the plan contracts, which is longer than the usual five business days because these contracts are often large and complex. It is still a short window, and the contract can run for a year or more, so having it reviewed before you sign is important.
Is my deposit safe when I buy off the plan?
Your deposit should be held in a trust account or covered by a deposit bond rather than released to the developer. We confirm how your deposit is held before you pay it.
What happens if the finished property is different from the plans?
Off the plan contracts often allow the developer to vary the design, size, finishes or materials within set tolerances. We check what can change before you sign, and advise on your rights if the finished property falls outside what was agreed.
What if the developer goes broke during construction?
Developer insolvency is a real risk in off the plan buying and can put your purchase and deposit at risk. We review the developer’s rights under the contract and the protections available to you before you commit.
Can first home buyers buy off the plan?
Yes. New and off the plan homes can qualify for first home buyer help in NSW, including the First Home Buyers Assistance Scheme and the First Home Owner Grant. Eligibility and limits change, so we check the current rules and you can confirm details with Revenue NSW.
How long until settlement on an off-the-plan purchase?
It depends on when construction finishes. Settlement usually occurs a set number of days after the developer notifies you that your lot has been registered with its own title, so the timeline is driven by completion rather than a fixed date.
Thinking of Buying Off the Plan? Get the Contract Checked First
The best protection in an off the plan purchase is advice before you sign. We review the contract, explain the risks, and guide you through construction to settlement, so you buy with confidence.
Thinking of buying an established property instead? See our buying property page, or for an overview of how property transactions work, our conveyancing services.
Book a consultation with our conveyancing team today, or call us on (02) 4933 5111. Check our FAQ page if you have any questions.
