Buying Off the Plan in NSW: Sunset Clauses and Your Protections

Reviewed by Brenda Gately, Licensed Conveyancer (NSW Licence No. 05006556, AIC member) — 36 years' experience.

Buying off the plan means committing to a property that does not exist yet, on a contract written by the developer. NSW law gives purchasers specific protections: a ten business day cooling-off period, a disclosure statement that must be attached before you sign, 21 days' notice if that statement becomes materially inaccurate, and — critically — a sunset clause cannot be used to rescind your contract unless you consent in writing or the Supreme Court permits it after 28 days' notice.

Statutory position last reviewed 13 September 2026.

Off-the-plan contracts are long, complex and drafted to favour the developer. That is not a scandal — it is the starting point, and the law now corrects for a good deal of it. Knowing which protections are yours by statute tells you which contract terms are negotiable and which are simply unenforceable.

Your cooling-off period is longer

Off-the-plan residential contracts carry a ten business day cooling-off period under section 66S — double the standard five. The reasoning is straightforward: these contracts are longer and more complex, and you need time to have them read properly.

As with any cooling-off period, it ends at 5pm on the final business day and rescinding costs you 0.25% of the purchase price. More detail in our guide to the cooling-off period.

The disclosure statement

Under section 66ZM, the vendor must attach a disclosure statement in the approved form to the contract before you sign it. It is not optional and it is not something that arrives later.

The statement carries the documents that tell you what you are actually buying — the draft plan prepared by a registered surveyor, proposed lot areas and locations, draft by-laws, draft management statements, and related instruments.

These documents are the substance of the purchase. The draft by-laws determine whether you can keep a pet or run a business from the apartment. The draft plan determines your actual floor area and where your car space sits.

If the disclosure statement becomes wrong

If the vendor becomes aware the statement was inaccurate in a material particular when you signed, or has since become inaccurate, they must notify you in the approved form at least 21 days before completion. That notice period exists to give you time to take advice rather than discover a change at settlement.

Sunset clauses — the protection that matters most

A sunset clause sets a date by which the plan must be registered or the building completed. If that date passes, the clause allows the contract to be brought to an end.

The historical abuse is well documented: in a rising market, a developer would allow a project to run past its sunset date, rescind contracts signed at earlier prices, and resell at current ones. Section 66ZS of the Conveyancing Act 1919 (NSW) now makes that very difficult.

What a developer must do

A vendor proposing to rescind under a sunset clause must serve each purchaser written notice at least 28 days before the proposed rescission, specifying why they propose to rescind and why the sunset event did not occur by the sunset date.

Having given that notice, the vendor may only rescind if:

• each purchaser consents in writing, or
• the vendor obtains an order of the Supreme Court permitting it, or
• the regulations otherwise permit it.

The Court may permit rescission only if the vendor satisfies it that doing so is just and equitable in all the circumstances. And the vendor bears the purchaser's Supreme Court costs, unless the Court is satisfied the purchaser unreasonably withheld consent.

Automatic rescission does not work

This is worth knowing when you read the contract. A sunset clause cannot automatically rescind an off-the-plan contract. If the clause purports to do so, it is read as merely permitting rescission in accordance with section 66ZS — so the notice, consent and Court requirements still apply.

In other words, a clause saying the contract "is automatically terminated" on the sunset date does not mean what it appears to say.

Note that these protections apply to residential lots. Different considerations apply to commercial off-the-plan purchases.

What else to check before signing

• The sunset date itself. Is it realistic for the stage the project is at? An optimistic date is a risk to your finance approval, not just your timeline.
• Finance timing. Approval does not last years. You will generally need to requalify near completion, at whatever rates and lending criteria apply then — not today's.
• Variation clauses. Most contracts let the developer vary finishes, fixtures and minor dimensions. Understand the limits of what can change.
• The deposit and where it is held. Whether it sits in a trust account or is released to the developer materially changes your risk.
• Defect rectification. What the process is on completion, and how long you have to raise problems.
• Duty and grants. Off-the-plan purchases have their own duty timing rules, and the $10,000 First Home Owner Grant applies to new homes — see our guide to first home buyer stamp duty.

If it is an apartment

Everything in the draft by-laws and draft management statement becomes your day-to-day reality once you move in. The same questions matter here as in any strata purchase — see our guide to the strata report when buying an apartment, noting that for an off-the-plan purchase you are reading drafts rather than an operating scheme's records.

Getting help

Off-the-plan contracts reward careful reading more than almost any other kind. We translate them into plain language, tell you which terms are ordinary and which are worth negotiating, and make sure the statutory protections are not quietly contracted around. See our off the plan conveyancing service, or talk to conveyancers in Sydney who read these contracts weekly.

Request a Free Quote or call (02) 8815 8148.

Frequently asked questions

What is the cooling-off period for an off-the-plan contract in NSW?

Ten business days, ending at 5pm on the final business day — double the standard residential period, because these contracts are longer and more complex.

Can a developer cancel my off-the-plan contract using a sunset clause?

Only with your written consent or an order of the Supreme Court, and only after giving at least 28 days' written notice explaining why. A clause purporting to rescind automatically does not have that effect.

What is a disclosure statement?

A statement in the approved form the vendor must attach to the contract before you sign, carrying the draft plan, proposed lot details, draft by-laws and related documents (s66ZM).

What if something in the disclosure statement changes?

If it was or becomes inaccurate in a material particular, the vendor must notify you in the approved form at least 21 days before completion.

Do I need to reapply for finance before settlement?

Usually yes. Approval obtained when you signed will generally have lapsed, and you requalify under the lending criteria and rates applying near completion. Budget for that uncertainty.