Buying Off-the-Plan: Contracts, What Can Go Wrong and How to Protect Yourself
- Jackie Atchison
- 3 days ago
- 3 min read
Intro
Buying off-the-plan can look like a smart move. You lock in today’s price, get time to save, and walk into a brand-new property. But off-the-plan contracts are often written to favour the developer—and what you expect isn’t always what gets delivered.
This post breaks down the key legal risks of buying off-the-plan in NSW and how to manage them.
Why It Matters
Off-the-plan contracts often allow for changes in layout, finishes, settlement timing and even lot boundaries. Without proper advice before you sign, you could end up with a property that doesn’t match what you thought you were buying—or worse, with no legal recourse.
What You Need to Know
The Disclosure Statement Isn’t the Whole Story
NSW law requires developers to give you a disclosure statement with a draft plan, schedule of finishes, and other key details. But this is just the starting point. Many contracts include broad clauses allowing the developer to:
Change the size or layout of your lot
Swap or downgrade finishes and appliances
Delay registration and settlement
Cancel the contract under certain conditions
Tip: Always read the contract itself—not just the marketing material or summary. The fine print matters.
Settlement Dates Are Not Fixed
Off-the-plan contracts usually set a long sunset date (often 24–36 months or more). Settlement won’t happen until the plan is registered and an occupation certificate issued. Delays are common—and rarely give buyers a right to walk away unless the sunset period expires.
Variations Can Be Substantial
Some variation is expected in new developments. But under NSW law, developers must notify buyers in writing of any changes to the disclosure statement that occur before settlement. This is done through a "notice of changes."
The notice must:
Be provided at least 21 days before settlement
Clearly describe the change
Be in the approved form
If the change is materially prejudicial to you—for example, a significant reduction in lot size, removal of key features, or downgrade of finishes—you may be entitled to rescind the contract.
To do that, you must act within 14 days of receiving the notice of change.
Tip: The right to rescind is time-sensitive and only applies if the change would reasonably disadvantage you. Legal advice is essential before taking action. But if a change is too significant, you may have the right to rescind the contract. NSW law gives buyers some protection—but only if the change is materially prejudicial and the buyer acts quickly.
Rescission Rights Are Limited
If the developer wants to rescind the contract (e.g. to resell at a higher price), they now need court approval or the buyer’s consent in many cases. But that doesn’t mean you’re fully protected—especially if timelines are extended and your finance approval lapses.
You May Be Liable for More Than You Expect
Some contracts shift responsibility for things like:
Strata levies and special contributions
GST treatment of the purchase
Defects liability or building warranty enforcement
Make sure your lawyer reviews these clauses carefully.
Commercial Insight
Buying off-the-plan isn’t just about the property—it’s about the contract. Developers expect buyers to sign their standard terms. But that doesn’t mean you can’t negotiate, clarify, or request amendments before committing.
Clear advice at contract stage can prevent years of frustration (or litigation) later.
What to Do Next Before Signing an Off-the-Plan Contract
Get legal advice before signing any off-the-plan contract
Understand what can change—and whether you have any right to cancel
Confirm whether the contract includes a schedule of finishes, detailed plans, and timeframes
Ask questions about settlement flexibility, changes in lot area, and your obligations pre-completion
Closing Wrap
I help buyers review off-the-plan contracts before they commit—so they know what they’re signing and what could change. If you’re considering buying into a new development, I can help you make a confident, informed decision.
