At a glance — Off-the-plan conveyancing Victoria 2026
| What it is | Buying property before construction is complete — contract signed off plans rather than the finished property |
| Key protections | Sale of Land Amendment Act 2019 — sunset clause restrictions |
| Stamp duty concession | Off-the-plan concession extended to 21 April 2027 |
| Concession effect | Stamp duty calculated on dutiable value (typically land + construction completed at contract date), not full purchase price |
| Stacking with first home buyer exemption | Yes — can result in $0 stamp duty on nominally $700K+ apartments |
| Available to | All buyers — owner-occupiers and investors (not just first home buyers) |
| Sunset clause | Date by which the development must be complete; developer can't rescind without purchaser consent or VCAT approval |
| Defect rectification | Builder must rectify defects under the Building Act 1993; OC remedies under Owners Corporations Act 2006 |
| Cooling-off period | 3 clear business days from contract signing (private sale) |
| Settlement | At registration of plan of subdivision — typically 2-4 years from contract |
| Our fixed conveyancing fee | $660-$990 |
What is off-the-plan conveyancing?
Off-the-plan conveyancing in Victoria is the legal work of buying property before construction is complete — contracting based on the plans, marketing materials, and contract terms rather than the finished property. The buyer signs a contract at an early stage (sometimes before construction starts, sometimes during construction), pays a deposit, and waits — typically 1-4 years — for the development to complete, the plan of subdivision to register, and settlement to occur. Off-the-plan contracts have specific legal characteristics not present in standard residential conveyancing: sunset clauses, change-of-plan provisions, deposit protection rules, and stamp duty timing. Buyer protections under the Sale of Land Amendment Act 2019 restrict developer use of sunset clauses to rescind contracts. The Victorian off-the-plan stamp duty concession, extended to 21 April 2027 in the 2026-27 Victorian Budget, can substantially reduce stamp duty by excluding construction costs from the dutiable value. At Fogarty Oliver Rothschild, principal lawyer Elisa Rothschild BA/LLB handles off-the-plan conveyancing in-house at the $660-$990 fixed fee (the upper end of the range typically applies, given the additional complexity). This guide is for anyone buying off-the-plan in Victoria.
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What's different about an off-the-plan contract?
A standard residential contract sells a completed property. An off-the-plan contract sells the right to a not-yet-completed property, with specific provisions covering what the developer will deliver and what happens if things don't go as planned.
Standard residential vs off-the-plan:
| Standard residential | Off-the-plan | |
|---|---|---|
| What you're buying | Existing property | Right to a future property |
| Contract signed | At sale | At early development stage |
| Plan of subdivision | Already registered | To be registered before settlement |
| Settlement | 30-90 days after signing | 1-4 years after signing |
| Property inspection | Pre-contract | Limited (display suite, plans, finishes schedule) |
| Settlement amount | Full purchase price | Full purchase price at settlement (after deposit) |
| Sunset clause | N/A | Date by which development must complete |
| Change-of-plan provisions | N/A | Permitted within defined limits |
| Stamp duty timing | At settlement | At contract date (with concession), recalculated at settlement if changes |
| Stamp duty concession | First home buyer only | Off-the-plan concession available to all buyers |
| Defect rectification | Pre-existing defects buyer's problem | Builder/developer obligations under Building Act |
The complexity is in the gap between contract and settlement. That gap is where things change — sometimes for the developer, sometimes for the buyer's circumstances, sometimes for the market.
What is a sunset clause and what does the Sale of Land Amendment Act 2019 do?
A sunset clause in an off-the-plan contract is the date by which the development must reach a defined milestone (typically plan registration and certificate of occupancy). If the milestone isn't met by the sunset date, either party may have the right to rescind the contract.
The historical problem:
Pre-2019, some developers used sunset clauses to rescind contracts in rising markets. Properties contracted at, say, $600,000 in 2017 might be worth $750,000 in 2020. If the developer engineered or allowed the sunset clause to trigger, they could rescind the original contract, return the deposit, and resell at the new market price — leaving the original buyer out of pocket.
The Sale of Land Amendment Act 2019 reforms:
The Sale of Land Amendment Act 2019 amended the Sale of Land Act 1962 to restrict developer use of sunset clauses. Under the amended provisions:
- A developer can only rescind under a sunset clause with the buyer's written consent, or
- With an order from VCAT (Victorian Civil and Administrative Tribunal)
- VCAT will only approve developer rescission if satisfied it would be "just and equitable" in the circumstances
- Factors VCAT considers include: reason for delay, market price changes, developer's good faith, prejudice to the buyer
The buyer retains the right to rescind under a triggered sunset clause without these restrictions — the protection is asymmetric in favour of buyers.
Practical reality:
Sunset clause disputes still happen but are now much less common. Developers who try to engineer or exploit sunset clauses face VCAT scrutiny and substantial evidentiary burden. From the buyer's perspective, sunset clause provisions are still worth reviewing carefully — they're protection, not just paperwork.
What is the off-the-plan stamp duty concession?
The off-the-plan stamp duty concession is the temporary scheme that reduces stamp duty on eligible off-the-plan purchases by calculating duty on the dutiable value (typically land plus construction completed at contract date) rather than the full purchase price.
Key features (May 2026):
- Extended to 21 April 2027 in the 2026-27 Victorian Budget
- Available to all buyers — owner-occupiers, investors, first home buyers
- Applies to apartments, townhouses, and units (not standalone houses)
- Reduces dutiable value by the construction component of the contract price
- Can stack with first home buyer exemption for eligible buyers
How it works in practice:
You contract to buy a $700,000 off-the-plan apartment. At the contract date, construction has not yet begun, so the dutiable value is the land component only — typically calculated as a percentage of the contract price.
In a typical apartment building:
- Land component might be 30-40% of the price
- Construction component might be 60-70% of the price
For a $700,000 apartment:
- Contract price: $700,000
- Land component (dutiable value): ~$245,000 (35%)
- Construction component (excluded): ~$455,000 (65%)
Standard stamp duty on $700,000: ~$37,000 Stamp duty on dutiable value of $245,000: ~$8,500 Saving: ~$28,500
For a first home buyer where the dutiable value falls under $600,000:
- Dutiable value: $245,000
- First home buyer full exemption applies (under $600K)
- Stamp duty: $0
- Combined saving over standard duty: ~$37,000
Eligibility:
- Property must be apartment, townhouse, or unit (not standalone house)
- Contract signed before 21 April 2027
- Otherwise standard off-the-plan rules apply
What about change-of-plan provisions?
Off-the-plan contracts typically include change-of-plan provisions allowing the developer to make changes to the plans during construction. These can include:
- Minor changes to floor layout
- Changes to materials and finishes
- Changes to common areas
- Changes to amenities (gym, pool, common spaces)
- Variations to the plan of subdivision
What the contract typically permits:
- Minor non-material changes — usually allowed at developer's discretion
- Material changes — buyer must be notified; buyer may have rescission rights depending on extent
- Substantial reduction in floor area — buyer typically has rescission rights
- Loss of amenities promised in marketing — buyer may have rescission or damages rights
What to check in the contract:
- What constitutes a "minor" change vs a "material" change
- Notification requirements (timeframe, information required)
- Buyer's rights when changes occur (rescission, price adjustment, acceptance)
- What happens to common areas, amenities, parking allocation
- Whether the developer can substitute materials of "equivalent quality"
Poorly worded change-of-plan provisions can leave the buyer with a substantially different property than what they contracted for — and limited remedies. Senior-lawyer review catches the asymmetric clauses.
A 2024 South Yarra matter: A buyer reviewing an off-the-plan contract for a $1.1M apartment in a new development. The change-of-plan clause allowed the developer to substitute "materials of equivalent quality" without buyer consent for any item under $50,000 in value. Our review identified that this would effectively allow the developer to downgrade kitchen appliances, bathroom fittings, flooring, and lighting — substantial items individually under the $50K threshold but cumulatively significant. We negotiated amendments restricting material substitutions and capping the cumulative impact. Buyer proceeded with stronger protections.
What about defect rectification?
Defect rectification in newly built apartments is a major issue in Victoria 2026. Many mid-2010s and early-2020s buildings are working through defect litigation — cladding (post-Grenfell), waterproofing, façade, balcony issues.
Legal framework:
- The builder must rectify defects under the Building Act 1993 (Vic) and the Domestic Building Contracts Act 1995
- Statutory warranty periods apply (typically 6 years for structural defects, 2 years for non-structural)
- Owners corporation has standing to pursue defects affecting common property under the Owners Corporations Act 2006
- Individual lot owners have standing to pursue defects affecting their lot
Defect rectification provisions in the contract:
Standard off-the-plan contracts include defect rectification provisions covering the period between settlement and the end of the statutory warranty. These provisions should specify:
- Notification requirements
- Timeframes for builder response
- Process for disputed defects
- Holdback or retention arrangements (if any)
- Owners corporation's role in defect claims
Practical reality in 2026:
For buildings completed 2015-2023, defect litigation has been a recurring pattern. Cladding Safety Victoria continues to work through buildings identified in post-Grenfell audits. Waterproofing defects in mid-rise apartment buildings are common. Off-the-plan buyers entering new developments now have the benefit of (slightly) tighter regulation but should still expect to see defect issues emerge in the 2-5 years post-settlement.
See our Owners Corporation guide for more on defect handling →
What deposit protection applies in off-the-plan?
Off-the-plan deposits are held in trust under specific legal protections.
The framework:
- Deposit (typically 10% of purchase price) is paid into trust on contract signing
- Held in trust until settlement or contract termination
- If the developer becomes insolvent before settlement, deposit protection depends on contract terms and the specific circumstances
- Some contracts provide for bank guarantees in lieu of cash deposit
Risk considerations:
- Verify the trust account arrangements before paying the deposit
- Consider bank guarantee where available — protects the deposit if the developer becomes insolvent
- Be cautious about deposits significantly larger than 10% — these are typically not market practice
What goes wrong:
A buyer pays a $100,000 deposit on a $1M off-the-plan apartment. Construction stalls. The developer becomes financially distressed. By the time the development is completed (or the project is abandoned), the buyer's deposit may or may not be recoverable depending on the specific circumstances and trust arrangements.
Senior-lawyer review of trust arrangements and contract terms pre-deposit catches the higher-risk structures.
What about the timing between contract and settlement?
The gap between contract signing and settlement is typically 1-4 years in off-the-plan. Things change during that gap.
What can change:
Buyer's financial position. Income changes, lending criteria change, the lender that pre-approved your loan at contract may not approve it at settlement. Many off-the-plan contracts allow rescission if finance can't be obtained, but the conditions vary substantially.
Property values. Markets change. A $700,000 apartment contracted in 2024 might be worth $800,000 at 2027 settlement (good for the buyer) or $620,000 (bad — the buyer is settling at above-market price).
Personal circumstances. Relationship changes, work relocations, family changes — all of these affect whether the buyer wants to settle at the original price two years later.
Contract terms. Some off-the-plan contracts include provisions for changes in personal circumstances; most don't. Senior-lawyer review identifies what flexibility the contract provides.
Stamp duty rules. The 2026-27 Victorian Budget extended the off-the-plan concession to 21 April 2027, but if your contract is signed before that date the concession applies regardless of when settlement occurs. Future changes to stamp duty rules typically grandfather contracts already signed.
What does off-the-plan conveyancing cost?
At Fogarty Oliver Rothschild, off-the-plan conveyancing is included in the standard $660-$990 fixed fee range, with the upper end typically applying because the work is more involved.
Where you'll typically sit:
- $770 — Standard off-the-plan apartment with clean contract
- $880 — Off-the-plan with complex contract terms, multiple title structure, mixed-use building
- $990 — Off-the-plan with FIRB requirements, trust structure, or substantial special conditions
What's included:
- Pre-contract review of off-the-plan contract (typically more substantial than standard residential review)
- Sunset clause analysis
- Change-of-plan provision review
- Defect rectification provision review
- Deposit protection analysis
- Off-the-plan stamp duty concession coordination
- First home buyer exemption coordination (if applicable, can stack)
- All standard conveyancing through to settlement
- PEXA settlement attendance
- Coordination of settlement with plan registration
For ultra-complex matters (development-side conveyancing, multiple-lot off-the-plan portfolios, complex trust structures), bespoke quote applies.
What goes wrong without proper off-the-plan review?
Three recurring scenarios:
1. Change-of-plan delivers something different. A buyer contracts for a 2-bedroom apartment with a 12sqm balcony, premium kitchen finishes, and ducted air conditioning. The change-of-plan provision allows the developer to substitute "materials of equivalent quality" without consent. At settlement, the buyer receives an apartment with reduced balcony (8sqm — within "minor" tolerance under the contract), entry-level kitchen finishes (within "equivalent quality" under the contract), and split-system air conditioning (within "equivalent function" under the contract). The buyer's remedies are limited because the contract permitted these changes.
2. Sunset clause triggered in a rising market. A buyer contracts for $600K in 2024. By 2027 settlement, the apartment is worth $750K. The developer tries to engineer or invoke a sunset clause to rescind and resell. Under the Sale of Land Amendment Act 2019, the developer needs the buyer's consent or VCAT approval — but legal action is required to enforce, and the buyer's stress is real even if they ultimately prevail.
3. Substantial defects emerge post-settlement with insufficient rectification provisions. The buyer settles on a new apartment. Within 12-24 months, balcony waterproofing defects emerge. The contract's defect rectification provisions are minimal. The owners corporation pursues the builder for collective defects, but individual unit damage takes years to resolve. Special levies fund interim repairs. Senior-lawyer pre-contract review would have negotiated tighter defect provisions.
(Anonymised illustrative scenarios based on common patterns.)
How does off-the-plan conveyancing work timeline-wise?
| Stage | Typical timeframe |
|---|---|
| Pre-contract review | 3-5 business days (longer than standard residential due to complexity) |
| Contract signed → deposit paid | At signing (typically 10% deposit) |
| Cooling-off period | 3 clear business days from signing (private sale) |
| Construction period | 12-36 months typical (varies by development) |
| Plan of subdivision registration | At construction completion |
| Settlement notification | Typically 14-21 days notice required |
| Settlement | At plan registration, on agreed date |
| Defect inspection | Pre-settlement walkthrough |
| Defect rectification period | 6 months-2 years post-settlement typical |
Frequently asked questions
What is off-the-plan conveyancing?
Off-the-plan conveyancing is the legal work of buying property before construction is complete. The buyer contracts based on plans, pays a deposit, and waits for the development to finish (typically 1-4 years) before settlement.
What is a sunset clause?
A sunset clause is the date by which the development must reach a defined milestone (typically plan registration and certificate of occupancy). The Sale of Land Amendment Act 2019 restricts developer use of sunset clauses to rescind contracts — developers now need buyer consent or VCAT approval to rescind.
What is the off-the-plan stamp duty concession in Victoria 2026?
A temporary concession that reduces stamp duty on eligible off-the-plan purchases by excluding construction costs from the dutiable value. Available for apartments, townhouses, and units. Extended to 21 April 2027. Available to all buyers (not just first home buyers). Can stack with first home buyer exemption.
Can a first home buyer claim both the first home buyer exemption and the off-the-plan concession?
Yes. The off-the-plan concession first reduces the dutiable value by excluding construction costs. If the reduced dutiable value falls under $600,000, the first home buyer full exemption then applies. The combination can mean $0 stamp duty on nominally $700,000+ apartments.
What happens if the developer changes the plans during construction?
The contract's change-of-plan provisions control. Minor changes are typically allowed without buyer consent; material changes typically require notification and may give the buyer rescission rights. Poorly drafted change-of-plan provisions can deliver a substantially different property than what was contracted.
What about defects in a newly built apartment?
The builder must rectify defects under the Building Act 1993 and statutory warranties. The owners corporation can pursue defects affecting common property under the Owners Corporations Act 2006. Defect rectification provisions in the off-the-plan contract should specify notification and timeframe requirements.
What's the cooling-off period for off-the-plan?
For private sale off-the-plan contracts, the cooling-off period is 3 clear business days from signing (same as standard residential). For auction off-the-plan (uncommon), there's no cooling-off period.
What if the developer becomes insolvent?
Deposit protection depends on contract terms and trust arrangements. Verify trust arrangements before paying the deposit. Bank guarantees in lieu of cash deposits provide stronger protection.
How long is the gap between contract and settlement?
Typically 1-4 years. Some developments complete faster; some take longer. Senior-lawyer review identifies expected timeframes and what happens if construction is delayed.
What does off-the-plan conveyancing cost at Fogarty Oliver Rothschild?
Included in the $660-$990 fixed fee. The upper end of the range typically applies for off-the-plan because the contract review is more involved than standard residential. No additional fees for stamp duty concession coordination or first home buyer exemption stacking.
Ready to discuss your off-the-plan purchase?
The first 15 minutes are free.
📧 elisa@fogartyoliverandrothschild.com.au
📍 84 Chapel Street, St Kilda VIC 3182
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Written and reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Conveyancing and property law in Melbourne since 2012. Last reviewed 27 May 2026.
This guide is general information about Victorian conveyancing, not legal advice for your specific transaction. For advice on your matter, book a free 15-minute consultation.