Buying off the plan

You can choose to buy a property 'off the plan'. This means entering into a contract before the building is out of the construction phase (if relevant) and the title to the lot has been created.

Entering into an off-the-plan contract typically involves some risks for both buyers and sellers. As a buyer, it is strongly recommended that you seek specialist legal advice before signing a contract.

Make sure you're aware of the risks when you buy off the plan, which include:

• not being able to see the final result until after you’ve bought the property
• unexpected delays in the building process
• market price changes between when you enter into a contract and when the contract settles
• contract clauses allowing it to be cancelled.

Maintaining an open dialogue with the seller or property developer can help you avoid unnecessary issues during the purchasing process. This includes committing to ongoing and reasonable negotiation throughout the contract, particularly when the property values change or difficulties arise, such as skilled tradespeople shortages.

Disclosure statement

The seller must give you a disclosure statement that:

• contains their name and address
• identifies you as the buyer (by name and address)
• clearly identifies the land or unit you're buying
• records their claims or promises about a future certificate of title.

To identify a block of land ('the proposed lot') the developer must disclose:

• the number of the proposed lot
• the total area of the proposed lot
• the proposed orientation of the lot (by referring to north).

A section of the disclosure statement will need to:

• be completed by a cadastral surveyor
• explain the proposed state of the lot at the time you'll take ownership
• give details of earth-moving or other works that the developer intends to do to the land.

You must sign and date the disclosure statement to confirm you understand it.

Contract

A contract is binding once you and the developer have both signed it, however in some limited situations you or the seller can back out of a contract.

You should always get legal advice before you sign or pay a deposit on an off the plan contract so you understand the terms of the contract and what they can mean for you. Getting legal advice is just as important as getting financial advice and organising a mortgage.

Cancelling a contract due to material prejudice

You have a right to back out of a contract if:

• you find out there's a change to the initial disclosure about the state of the land, and
• the change will cause a significant disadvantage (known as 'material prejudice').

The developer must notify you of a change to any detail that was set out in the disclosure statement.

You must show that the change will be a significant disadvantage (such as a significantly reduced size).

You can back out due to material prejudice (whichever is sooner):

• within 30 days of receiving the developer's notification
• before the title of ownership transfers to you as the buyer.

The courts have set a precedent to decide if a disadvantage is material prejudice.

Buyer ending a contract due to failure to settle

The Land Sales Act 1984 requires the seller of a proposed lot to settle the contract of sale no later than 18 months after you enter into the contract. If the seller fails to settle the contract within 18 months—other than because you have defaulted—you may terminate the contract by giving the seller written notice to terminate before the contract is settled.

The Land Sales Act doesn't give sellers the right to terminate an off-the-plan contract after 18 months, however they can build this right into the sales contract through sunset clauses.

We encourage you to seek legal advice about the terms of your contract and any legal remedies that may be available to you, especially if you're concerned about the seller terminating an existing sales contract.

Sunset clauses

A sunset clause in an off-the-plan sales contract provides a party with the right to terminate (or end the contract) if the contract isn't settled within a particular timeframe. Off-the-plan sales typically use non-standard contracts as the properties are yet to be registered or built.

Anyone considering buying a residential property is encouraged to get independent legal advice before signing a contract, especially when buying off the plan or if a contract includes added conditions like a sunset clause.

New property law reforms were introduced on 22 November 2023 to strengthen buyer protections under the Land Sales Act. The reforms limit when sunset clauses can be used to terminate off-the-plan contracts for the sale of land (not including community titles schemes such as apartments).

Sellers—who are often property developers—can only use sunset clauses to terminate off-the-plan contracts for the sale of land in the following situations:

• with your written consent as the buyer of the land
• under an order of the Supreme Court, or
• in another situation prescribed by regulation.

These new laws apply to:

• existing off-the-plan contracts for the sale of land that were signed but not settled by 22 November 2023, and
• new off-the-plan contracts for the sale of land signed on or after 22 November 2023.

The property reforms also confirm sellers can't get early access to any deposits you paid under off-the-plan contracts. Deposits paid under off-the-plan contracts can only be released from a trust account to sellers at the time of settlement or if the contract otherwise finalises and the seller is entitled to the deposit.

These changes are as a result of amendments to the:

• Land Sales Act
• Body Corporate and Community Management Act 1997
• Building Units and Group Titles Act 1980
• South Bank Corporation Act 1989.