Buying off the plan in New South Wales: what the law gives a buyer

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Kooky

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A buyer who signs for an apartment that is still a drawing, or a block of land that is still part of a paddock, is buying on paper. There is nothing to walk through and no title to search. The Registrar General of New South Wales puts it plainly on the office's off-the-plan page: because buyers usually cannot inspect the property first, they rely on the written information the developer gives them. The price is fixed on the day contracts are exchanged, and the balance is paid after construction and registration, which the same page says is often several years later.

New South Wales has written a set of rules around that gap. The Conveyancing Legislation Amendment Act 2018 placed them in a new Division 10 of the Conveyancing Act 1919, the Registrar General's page also cites the Conveyancing (Sale of Land) Regulation 2022, and the same page says the disclosure regime started in 2019. This guide walks through them in the order a purchase runs: what counts as an off-the-plan contract, what the developer must attach, the cooling-off period, where the deposit is held, what happens when the project changes, the 21 days before settlement, the sunset clause, and, more briefly, the building bond and defects rules that follow completion.

It describes the position as read in October 2026, on three kinds of page: the Registrar General's off-the-plan guidance (last modified on 31 January 2025), the New South Wales Government's page on buying a property off the plan, managed by NSW Fair Trading (last updated on 22 September 2025), and the text of the Conveyancing Legislation Amendment Act 2018 as Parliament made it. Where a detail comes only from that 2018 text, the guide says so, because the consolidated Act as now in force could not be read for this article.

Registrar General of New South Wales, off-the-plan page, last modified 31 January 2025; NSW Government page on buying a property off the plan, last updated 22 September 2025.

What counts as an off-the-plan contract

The definition is narrow and turns on one question: does the lot exist yet? In the 2018 text, section 66ZL defines an off-the-plan contract as a contract for the sale of a residential lot that has not been created when the contract is entered into, and says a lot is created when the plan that brings it into being becomes a registered plan. The Registrar General's page gives the everyday version: a contract that sells a parcel of land or a strata unit that does not yet have its own title when contracts are signed.

Two points follow. The rules cover land subdivisions as well as apartment towers, since both involve a lot that is still to be created. And they cover residential lots; the pages read for this guide say nothing about commercial lots sold the same way.

The dates matter too. The Registrar General's news item on the reform, first published on 11 October 2019, says the Conveyancing Legislation Amendment Act 2018 and the Conveyancing (Sale of Land) Amendment Regulation 2019 commenced on 1 December 2019. The disclosure regime and its remedies apply to residential off-the-plan contracts entered into from that date, and the item adds that contracts arising from option deeds exchanged before commencement are excluded from the disclosure regime. The sunset clause provisions are the exception: they apply to every off-the-plan contract, whether it was signed before or after 1 December 2019.

The disclosure statement and its draft documents

The first protection is paper. According to the Registrar General, the vendor must attach a disclosure statement, in the approved form, that covers items such as sunset dates and other conditional events. The 2018 text of section 66ZM says the statement must be attached before the purchaser signs, and section 66R, as amended by the same Act, requires the proposed contract to include a copy of it.

The centrepiece is a draft plan prepared by a registered surveyor. The Registrar General lists what it must show: the proposed lot number, the area of the lot and enough detail to locate it; any proposed easement or profit à prendre affecting the lot; and any proposed restriction on use or positive covenant affecting part of the lot. For a strata scheme, a draft floor plan and a draft location plan are required, although the locations and areas of parking and storage need not be shown. For community, precinct or neighbourhood schemes, the drafts are a location diagram, a detail plan and a property plan.

Other draft documents travel with the plan. The table below sets out the Registrar General's list.

Documents already attached to the contract count as part of the disclosure statement, the Registrar General says, and need not be attached twice.

The rule has a sanction. If the disclosure statement, the draft plan or the prescribed documents are not attached before signing, the purchaser may rescind within 14 days of exchange, according to the Registrar General's page. The 2018 text of section 66ZM adds a point for developers: a statement that turns out to be inaccurate at the time it was attached is not, by that fact alone, a breach. What the law asks for next is that the buyer be told.

Ten business days to cool off

A buyer of an established home in New South Wales has five business days to change their mind. An off-the-plan buyer has ten. The 2018 text of section 66S sets the end of the period at 5 pm on the tenth business day after the contract is made, against 5 pm on the fifth business day for other contracts, and the Registrar General's news item describes the change as an extension from five to ten business days that left established homes as they were.

Cooling off has a price. The NSW Government page says a buyer who withdraws during the period forfeits 0.25% of the purchase price. It also says the period can be waived or shortened only if the buyer's lawyer or conveyancer provides the required certificate and explains the contract and its consequences. The 2018 text allowed regulations to cap how far the off-the-plan period may be shortened; the figure, if one has been set, was not on the pages read.

A warning notice about the cooling-off right must sit in every residential sale contract, not only off-the-plan ones. The Registrar General gives its place in the rules as Form 2 of Schedule 5 to the 2022 Regulation.

Where the deposit sits until settlement

A deposit paid years before settlement is exposed to whatever happens to the developer in between. The answer in New South Wales is that the money does not go to the developer. The Registrar General says deposits and instalments must be held in a trust or controlled money account until settlement, so they cannot be released to the vendor early and are protected if the developer becomes insolvent. The Registrar General's 2019 news item gives 1 December 2019 as the day the amending Act and Regulation commenced.

The 2018 text of section 66ZT names who may hold the money: a real estate agent or licensed conveyancer, as trust money, or a law practice, as trust money or controlled money. The NSW Government page describes the holder as a stakeholder and lists an agent, a solicitor or the developer; the 2018 text read for this guide does not list the developer among the holders, so the two descriptions are given side by side. The same section, in its 2018 text, permits the deposit to be invested if that is lawful and the contract does not forbid it, with the interest paid into the account. The word "deposit" is wide in the 2018 text of section 66ZL: it includes amounts paid toward the purchase price of the lot.

Not every buyer pays cash. The Registrar General says purchasers may use a bank guarantee or a deposit bond instead. The NSW Government page adds a condition: that is possible only if the developer agrees before the contract is signed. In the 2018 text of section 66ZT, deposit bonds and bank guarantees fall outside the holding rule.

One earlier step is not a deposit at all. An expression of interest does not secure the property, the NSW Government page says. The agent must give a receipt and confirm in writing that neither side is under an obligation and that the payment will be refunded if no contract follows.

When something material changes

Projects change between the brochure and the build. The law does not forbid that; it sorts changes into those the buyer must be told about and those that do not count.

The test is the "material particular". The Registrar General describes material particulars as changes that adversely affect the use or enjoyment of the lot, including changes to the draft plan, the by-laws, the schedule of finishes, easements or covenants, management statements or development contracts. The 2018 text of section 66ZL uses the words "will, or are likely to" adversely affect use or enjoyment. Three kinds of change are carved out, according to the Registrar General: a change to the lot number or street name; changes to cost-sharing provisions in a building or strata management statement; and parking or storage locations changed in line with the contract.

When a disclosure statement was, or has become, inaccurate on a material particular, the vendor must serve a notice of changes. The 2018 text of section 66ZN sets the timing at no later than 21 days before completion, once the vendor becomes aware of the inaccuracy, and allows the notice to be served on the purchaser's authorised representative. The Registrar General's 2019 news item says the approved Notice of Changes form is to be used, and the off-the-plan page cites section 66ZL of the Act and clause 24 of the 2022 Regulation for the duty, which applies to contracts entered into from 1 December 2019.

The notice starts a clock. From the day it is received, the buyer has 14 days to act, on the Registrar General's page and the NSW Government page alike. A buyer who does nothing in that time keeps the contract: under the 2018 text of section 66ZO, where no rescission notice is served, the disclosure statement is taken to be amended as the notice describes.

Rescind, or stay and claim up to 2%

A material change gives the buyer two possible remedies, and both pass through the same gate. The Registrar General states it as two conditions: the purchaser would not have signed had they known of the change, and the purchaser is materially prejudiced by it. A change that is material but that the buyer would have accepted anyway, or that causes no real prejudice, opens neither remedy.

The first remedy is to leave. The 2018 text of section 66ZQ sets the form: a notice in writing, signed by the purchaser or their solicitor, and by every purchaser where there are several, served on the vendor or the vendor's solicitor no later than 14 days after the notice of changes or the registered plan is received. Under the 2018 text of section 66ZR, an effective notice rescinds the contract from the beginning and the deposit becomes payable to the purchaser. The NSW Government page says the same thing in plain words: the buyer can withdraw and get the deposit back.

The second remedy is to stay. The Registrar General says the purchaser may remain in the contract and claim compensation of up to 2% of the purchase price. The compensation route is not set out in the 2018 text read for this guide, in which section 66ZM leaves remedies to the regulations; the Registrar General's page (last modified on 31 January 2025) and the NSW Government page (last updated on 22 September 2025) both describe it as current. An unresolved claim may go to arbitration, the Registrar General adds, and the arbitrator's decision is final and bars a later rescission for the same change.

A worked example shows the scale. Assume a purchase price of A$800,000. The most a buyer could claim for a material change while staying in the contract is 2% of A$800,000, which is A$16,000. The same buyer withdrawing during the cooling-off period would forfeit 0.25% of A$800,000, which is A$2,000. These are illustrative figures computed from the two percentages; what a claim is worth in a given case depends on the change and on the prejudice shown.

The cap frames the choice. A buyer whose loss from a change is far above 2% of the price cannot recover it through this route, and the alternative the statute offers is to rescind within the 14 days. The 2018 text of section 66ZU says other remedies are unaffected. Which path suits a given buyer is a question for their own lawyer or conveyancer.

The registered plan and the 21 days to settle

Completion is not due until the building is finished and the plan is registered, the NSW Government page says. In the 2018 text of section 66ZL, registration of the plan is the moment the lot is created, and it is also the moment the buyer can compare what was promised with what was made.

The developer must give purchasers the final registered plan and associated documents at least 21 days before settlement, and purchasers cannot be forced to settle within that period, according to the Registrar General. The 2018 text of section 66ZP says the same from the buyer's side: the purchaser need not complete earlier than 21 days after receiving the documents.

The 21 days are working time. If the registered plan reveals a material inaccuracy that was never notified, the rights to rescind or to claim compensation still apply, the Registrar General says, and they must be exercised within 14 days of the documents being served. A buyer therefore has 14 days inside the 21 to check the plan against the draft and decide.

Sunset clauses: consent or a Supreme Court order

A sunset clause sets a date by which something must have happened, typically registration of the plan. If it has not, the contract can be ended. The NSW Government page describes the usual form as allowing either party to rescind.

New South Wales restricts how a vendor can use such a clause. Since 2015, the Registrar General says, developers have generally needed a Supreme Court order to end a contract under a sunset clause unless the purchaser agrees. The NSW Government page is direct about the asymmetry: the developer needs the buyer's consent or must apply to the Supreme Court of New South Wales, while the buyer does not need court approval.

Section 66ZS, which commenced on 1 December 2019, widened the rule. The Registrar General says it extends sunset clauses to events such as the issue of an occupation certificate, and allows the Court to award damages where a vendor terminates under one. The 2018 text of the section defines a sunset event as the creation of the lot, the issue of an occupation certificate, or another prescribed event, and the sunset date as the date in the contract, subject to any extension, by which the event must occur.

The detail of the procedure is known for this guide only from the 2018 text of section 66ZS, and each rule below carries that label. In the 2018 text, a vendor may rescind only with the written consent of every purchaser, under an order of the Supreme Court, or where regulations permit. In the 2018 text, the vendor must give each purchaser at least 28 days' written notice before a proposed rescission, with the reasons and the reason the sunset event has not occurred. And in the 2018 text, a sunset clause cannot rescind a contract automatically.

If the matter goes to court, the 2018 text requires the vendor to satisfy the Court that the order is just and equitable in all the circumstances. The 2018 text also lists what the Court takes into account: the terms of the contract; whether the vendor has acted unreasonably or in bad faith; the reason the event has not occurred; the likely date on which it will; whether the lot has increased in value; the effect of rescission on each purchaser; and any other relevant or prescribed matter. Under the 2018 text, the vendor pays the purchaser's costs of the application unless the purchaser unreasonably withheld consent.

The building bond and defects, in brief

The Conveyancing Act rules stop at settlement. What protects an apartment buyer after that is a different set of laws, and this guide only sketches them.

Under the Strata Building Bond and Inspections Scheme, the developer of a new apartment building lodges a bond with the Secretary, as the scheme page puts it. The scheme page puts it at 2% of the total contract price for constructing the building, or the percentage prescribed in the regulations. The bond is a bank guarantee or a bond from an approved issuer, according to the scheme's stage one page, last updated on 5 August 2026. On timing, the pages differ slightly: the body of the scheme page says the bond is lodged before the occupation certificate is issued, while its description, the stage one page and the off-the-plan page say before the developer applies for one.

As a worked example, a building with a construction contract price of A$12 million would carry a bond of A$240,000 at 2%, and A$360,000 at the 3% rate scheduled for 1 July 2028. The percentage is applied to the cost of building, not to the prices buyers pay.

The bond then follows a timetable counted from completion of the building work, set out on the scheme page. The developer appoints a building inspector within 12 months. An interim inspection and report follow between 15 and 18 months. The builder rectifies the defects identified, and a final inspection and report come between 21 and 24 months. Between two and three years, the bond is paid out to meet the cost of rectifying defects found in the inspections. If there are none, it goes back to the developer, as does any balance left when rectification costs less than the bond.

The scheme does not apply where home building compensation cover applies, both NSW Government pages say. That cover is a separate protection: the off-the-plan page says builders doing residential work valued over A$20,000 including GST must hold it, and that it covers new houses and multi-unit buildings up to three storeys. Proof of cover must be attached to the contract if work has started. If it has not, the page says proof must be given within 14 days of the cover being taken out, and the buyer can cancel if it is not provided, a right under the Home Building Act 1989 that ends once settlement occurs.

For serious defects there is a regulator. The NSW Government page says the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 lets Building Commission NSW investigate serious defects in class 2 apartment buildings and issue orders to developers, and that those powers can be used for up to 10 years after completion.

What the pages read do not settle

Several points are left open by the sources, and a careful reader should know which.

The section-by-section detail of the sunset procedure, the form of a rescission notice and the investment of deposits comes from the Conveyancing Legislation Amendment Act 2018 as made. The Registrar General's and the NSW Government's current pages confirm the main rules: the disclosure statement, the ten business days, the trust or controlled money account, the 14 days, the 2% cap, the 21 days, and consent or a court order for a vendor's sunset rescission. They do not restate the 28 days' notice, the list of factors for the Court or the costs rule, and the consolidated Act could not be read for this guide, so those items are reported as the 2018 text and not as confirmed current wording.

The pages give no figure for the usual size of an off-the-plan deposit, no procedure for the arbitration of a compensation claim, and no limit on how far the cooling-off period can be shortened. The two descriptions of who may hold a deposit, and of when a deposit bond may be used, differ in the ways noted above. The Registrar General's page also mentions a discussion paper on off-the-plan contracts and covenants laws under review, without a date, so the rules described here may be revisited.

The contract is signed on drafts. The statute's work is to make sure the buyer is told when the drafts change, and is given time to answer.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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