Sometimes strata units or retirement village homes are

advertised for sale before the building has been

constructed. The design of the building and sketches of
its final appearance may be included in advertising
material well before occupation is possible. Buying
a property under these circumstances is commonly
known as buying `off the plan.
There are a number of issues to be aware of when
buying off the plan because you are entering into a
contract to buy a property without having first been able
to view and assess the finished product.
The contract
When buying off the plan, the date for completing the
contract is usually not until the building is finished.
Commonly, the buyer pays a deposit to secure the
property, with the balance payable upon settlement.
The conditions of the contract should be closely checked.
Legal advice should be obtained on the benefits or
restrictions provided by the terms of the contract. For
example, consideration should be given to whether there
are any penalties for withdrawing from the contract.
Other questions you might need to ask could include:
Can I make changes to the finishes in the kitchen
and bathroom?
Can I select appliances such as stoves and
dishwashers and items such as floor and wall tiles?
Can I visit the site during construction?
If the building is finished earlier than expected, has
finance been suitably arranged?
What are my rights if construction is delayed?
Is my deposit secure if the building doesn't proceed?
Can I onsell during the construction period?
Always read your contract and obtain advice from a
lawyer or licensed conveyancer.
Making an offer or an expression of
interest
The steps for purchasing properties off the plan can be
quite different to purchasing other types of properties.
`Off the plan properties are often advertised and sold at
a fixed price, so getting the one you want may be a
matter of getting in early and making an expression of
interest payment, rather than competing directly with
other buyers through an auction or private sale.
Generally, the developer will decide on the conditions for
sale, including whether the property will be sold to the
highest bidder, at a fixed price, or as part of a cluster of
properties at wholesale prices. Their intended method of
sale for any particular property may change over time.
Developers sometimes contract a number of different
real estate agencies who may compete against each
other to sell each property. The activities of these agents
may also coincide with the developers own marketing
and sales activities. With so much going on, it can make
it difficult for potential purchasers to know where they
stand when they make an expression of interest payment
or an offer.
An expression of interest payment will not secure the
property. The agent or developer is not obliged to sell
you the property and they may take a number of such
deposits on the same property. They must tell you if
other offers are later made on the property, or if it is sold
to someone else. However, when a number of agents
and the developer are all selling the same property to
buyers who may be located anywhere in the world, a
significant amount of time may pass before the agent you
have dealt with is even aware that the property has been
sold to someone else. Unfortunately, this can mean your
expression of interest payment is locked up for weeks,
even months, and you still dont get to buy the property
you want.
Buying off the plan
March 2014
Disallowed marketing tactics
Agents must not mislead or deceive any parties in
negotiations or transactions and there are strict rules of
conduct that apply to sales agents, including when selling
properties off the plan.
For example, they are not allowed:
to advertise a property that is less expensive than
other similar properties, if the advertised property is
no longer available
to indicate a price range for a property if the lower
end of the range is significantly less than the value of
the property
to hold on to your expression of interest payment or
use high pressure tactics on you to purchase
another, more expensive property, if the property you
made the payment for is subsequently sold to
someone else.
Home warranty insurance
Home warranty insurance is required to be taken out by
the builder for residential building work (including the
construction of strata units) valued over $20,000. An
exception to this requirement is for the construction of
new multistorey buildings built after 31 December 2003.
A multistorey building is a building of more than three
storeys (not including the car park) and containing two or
more dwellings. Exemptions also apply to certain types of
retirement villages.
All other residential building work that is not exempt must
have home warranty insurance cover in place and a copy
of the certificate of insurance must be attached to the
contract of sale. The certificate is to show that the
necessary insurance has been taken out by the builder.
The insurance is required to insure the buyer against:
the risk of noncompletion of the work, and
breach of statutory warranties relating to the work.
However, a developer who sells a non multistorey strata
unit off the plan is exempt from attaching a certificate of
insurance to the sale contract, but only if the building
work has not yet commenced and the contract informs
the buyer that:
the developer selling the property does not need to
give a certificate of home warranty insurance if the
building work has not yet started
the law requires there to be home warranty insurance
in place for the building work before commencement
of the work
the developer is required to give the buyer the
certificate of home warranty insurance within 14 days
of the insurance being taken out
the buyer can cancel the contract of sale if the home
warranty insurance certificate is not provided within
14 days of the insurance being taken out.
Cancellations
The legal right to cancel the contract under the Home
Building Act 1989 is limited to situations without home
warranty insurance at the arranged time. In this
circumstance, the prospective purchaser can only cancel
before the contract has been completed (settlement).
Warning to purchasers
A contract could be completed before the building work is
finished and before any insurance is taken out. Where a
contract for sale is completed and settled, the legal right
to cancel the contract no longer applies, even if the
builder has broken the law and not provided the
necessary insurance.
Things you should think about
There may be substantial demand for housing in popular
areas of NSW and it is sometimes easy for developers to
market such properties months before building work is
complete.
Are you paying too much?
Market prices fluctuate, therefore the resale value may
be different to that of your expectations or predictions. It
may be difficult to know whether the selling price off the
plan will reflect the actual market value at the time your
property is ready for occupation.
March 2014
Funding the purchase
You may need to sell your present home to raise the
money needed to pay the balance owing upon
settlement. Timing of this sale is critical. You do not want
to sell your home too early or too late as problems could
arise either way.
This may be a particular issue for those buying
retirement village accommodation off the plan.
Changes to plans
Changes to the building plans often need to be made
during construction. This can sometimes mean that the
finished complex is not exactly the same as shown in the
original plan.
Quality of finish
When signing the contract, you may not know exactly
how your particular property will look when construction
is finished nor the precise quality or standard of fixtures
and fittings. Sometimes, the fixtures and fittings are
different from how the buyer imagined, or what they were
like in a display home at the time of sale.
Management contracts in place
In a strata scheme, the developer may have signed
binding management contracts between the owners
corporation and caretakers/building managers.
Prospective buyers are entitled to know the details and
see copies of any such contracts. Your lawyer or
licensed conveyancer can arrange the necessary
searches.
Exclusive use or special privilege bylaws
The developer is not permitted to register bylaws which
give exclusive use of desirable parts of the common
property (eg. a roof garden or parking) so that they are
only accessible to owners of certain lots. This type of
bylaw can only be made after the initial period (ie. after
onethird of the lots have been sold).
Unit entitlement
The unit entitlement of the various lots within a strata
scheme (which determines voting power at meetings and
the required levy contributions) may not be specified or
even known at the time properties are advertised for
sale.
Summary
Remember that when you buy off the plan, you are
paying for a property where the finished product may be
different from your expectations.
NSW Fair Trading recommends that potential 'offthe-
plan' buyers think carefully before entering into a contract
to buy premises which have not been built. Caution
should be exercised and appropriate legal and other
advice obtained before signing any documents or paying
any money.
March 2014
www.fairtrading.nsw.gov.au
Fair Trading enquiries 13 32 20
TTY 1300 723 404
Language assistance 13 14 50
This fact sheet must not be relied on as
legal advice. For more information about
this topic, refer to the appropriate
legislation.
State of New South Wales through NSWFair Trading
You may freely copy, distribute, display or download this information with some important
restrictions. See NSWFair Trading's copyright policy at www.fairtrading.nsw.gov.au or email
publications@finance.nsw.gov.au