General information, not legal advice. Off-the-plan contracts are long and differ from one development to the next. The official pages are listed at the foot of this page, and a conveyancer or solicitor can read your contract with you.
The last stop is the newest part of the house, and for some buyers the whole house is new. Between signing for a home that does not yet exist and walking through it before settlement, the official pages name a few gates the building and the contract have to pass. This stop sets them out, state by state.
The certificate that comes before the keys
VICAn occupancy permit, before possession
Victoria’s Sale of Land Act 1962 says that where an off-the-plan contract is for a lot in a residential apartment building, the vendor must not require or allow the purchaser to take possession until an occupancy permit has been issued for the lot, or for the part of the building that contains it (section 9ADA).
NSWAn occupation certificate, then settlement
Building Commission NSW explains why it looks at apartment buildings while they are still being built: “once an occupation certificate is issued for a building, the developer can require purchasers to settle purchases.” If its inspectors find defects, “an order can be given to prohibit an occupation certificate, or for building work to be rectified, or for building work to stop.”
Before the plan is registered: Victoria
VICAn off-the-plan lot in Victoria sits on a plan of subdivision that has not yet been registered. The Sale of Land Act 1962 gives the purchaser two rights tied to that plan.
- A plan that is not registered in time. If the plan of subdivision is not registered within 18 months of the contract, or within another period the contract sets, the purchaser may rescind the contract at any time after that period ends and before the plan is registered (section 9AE).
- An amendment to the plan. If, after the contract and before registration, the Registrar requires or the vendor requests an amendment to the plan, the vendor must tell the purchaser in writing within 14 days. The purchaser may rescind the contract within 14 days of being told, if the amendment will materially affect their lot (section 9AC).
A vendor’s power runs the other way, and the Act limits it. If the plan of subdivision has not been registered, or an occupancy permit has not been issued, by the sunset date, the vendor may use a sunset clause to rescind a residential off-the-plan contract (section 10B). Before rescinding, the vendor must give each purchaser written notice at least 28 days ahead, setting out the reasons and saying the purchaser does not have to agree, and must then get each purchaser’s written consent. Without that consent, the vendor can ask the Supreme Court for an order, which the court makes only if it is satisfied that the order is just and equitable (section 10E).
A seller’s rescission is not automatic: the ACT
ACTThe Civil Law (Sale of Residential Property) Act 2003 says a rescission provision in an off-the-plan contract does not end the contract by itself when an event allowing rescission happens; it only lets the seller rescind in the way that part of the Act sets out (section 19E). The seller may rescind under such a provision only if each buyer, after receiving notice under section 19C, consents in writing, or the Supreme Court has made an order allowing it, or a circumstance set by regulation applies (section 19B). The notice must be in writing, reach each buyer at least 28 days before the proposed rescission, give the seller’s reason, and say that the buyer may, but need not, consent (section 19C). The court must not make an order unless the seller satisfies it that the order is just and equitable (section 19D). Access Canberra’s guide also notes that the usual 30 to 90 day settlement period “may not apply where the property is a new development.”
The walk-through on a new home
A new home is walked through against the contract like any other. VICConsumer Affairs Victoria’s advice holds here too: “Check all the items listed in the contract are there and in the right condition.” What happens if a building problem shows up after settlement is set out on Consumer Affairs Victoria’s page on building problems after property settlement.
Back through the house
For the items on the list, see what the contract says stays. For a problem found on the walk, see if something is wrong. For the day the keys pass to you, see settlement day.