When you purchase a property off-the-plan contract, you are purchasing something which could be nothing much more than a sketch, plan or blueprint – essentially something which may never eventuate. Contracts for off-the-plan properties are complex and may include unusual clauses. It is imperative that your lawyer provides you with a detailed review of the contract so that you understand your rights and obligations. 5 key issues to raise with your lawyer in relation to the contract would be:

Deposit

Generally, the requirement for the purchase of property is a 10% deposit payable upon exchange. For off-the-plan purchases, this money is usually held in a trust account and invested until settlement, which could be in several years time. The Contract should set out clearly who receives the interest earned on the investment. Purchasers are usually entitled to either a 50% share or all of the interest earned, and it can be paid upon or after settlement. Alternatively, the purchaser could request to provide a bank guarantee to the seller for the deposit amount.

Cooling-off period

Contracts for Sale usually, unless it has been waived, allow a 5 day cooling off period. If you choose to exercise your rights within the cooling off period and wish to rescind the Contract, you forfeit 0.25% of the purchase price. Once the cooling off period expires, you are legally bound to buy the property

Plan disclosure

When you purchase off-the-plan, you will be provided with plans and specifications of what the developer intends to be the finished product. You will also be given project plans to be approved by Council, proposed floor plans, a schedule of finishes, along with a number of other documents. You should have your lawyer review all these documents, and make sure that what the developer intends to construct, and the quality of what will eventually be built, matches your understanding and expectations. You should note that it may be necessary to alter plans throughout the construction process, and developers will usually retain the right to do so.

Defects

As you are purchasing property which you cannot see or inspect, there is the possibility that there could be unexpected defects in the final product. Off-the-plan Contracts can provide that the developer must remedy any defects which are identified by the purchaser prior to settlement.  You should ensure that the Contract gives you a right to inspect the property before settlement. It would also be prudent to check your rights in relation to defects identified after completion.

Inclusions and warranties

From the beginning to the end of an off-the-plan project, the developer is given a lot of flexibility as to how the project will be constructed and completed. Although you would have been given a schedule of finishes, the developer often has the right to alter finishes and materials in certain circumstances provided they are of a similar quality. The developer can make many changes throughout the building process, provided that you, as a purchaser, are not prejudiced. You should check that the Contract enables you to withdraw from the Contract and have your deposit refunded in the event that the changes are significant and prejudicial to you.

Conclusion

You should always have a lawyer properly review your Contract and ensure that you are aware of all your rights and obligations under the Contract. If the Contract skimps on details, there will be little room for complaints later on, and it could be very difficult to enforce your rights in the later stages. A contract lawyer would be useful in assisting you draft these terms.

Lachlan McKnight

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