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Buying a property off the plan is an increasingly popular choice for many buyers who want to purchase a brand-new apartment, unit or townhouse. While many purchasers are sold the benefits of off the plan purchases, they are often surprised to find out that those benefits are matched by significant risks.

Benefits

If you are purchasing an off the plan property, you will be aware that the developer and estate agent make the soon to be built home look very attractive. Usually, you will have the flexibility of being able to choose your fittings and colour scheme to suit your taste. Off the plan contracts have financial benefits too, including:

  • Lower purchase price – generally an off the plan purchase will be cheaper than an existing property as you are taking on the inconvenience of waiting for the property to be built and the risk of buying something before you have seen it in person. However, the upside is the price is locked-in, meaning that if property prices rise you obtain the benefit of moving into a property with increased equity.
  • Stamp duty savings – stamp duty for an off the plan contract is likely to be less than that payable on an existing house of property. The reason being that the dutiable value is the contract price less the costs of construction or refurbishment on or after the contract date. This means an off the plan purchaser may only pay duty on the land value. To make sure you receive any stamp duty savings, we recommend you discuss your purchase with your accountant or financial advisor.
  • Tax benefits – a significant reason for purchasing off the plan is to obtain tax benefits. For instance, if the property is to be used as an investment property, you may claim substantial depreciation tax savings. You may also negatively gear the property when it is purchased with the assistance of borrowed funds, and the rental return is less than your interest repayments and outgoings. Again, we recommend you discuss any tax benefits with your accountant or financial advisor.
  • Savings – some of the plan developments allow you to pay a lesser deposit upfront, leaving you with a longer period of time to save the remainder.

Risks

The above benefits must be balanced against the risks. While these risks can include changes to the finishes and overall look of the property, more significant risks include:
Cancellation – when developers offer off the plan contracts, they are running the risk that the development will be approved and plans of subdivision and occupancy permits will be issued. Given this risk, the contract of sale will usually allow the developer to cancel the contract if any plans, permits or approvals are not granted within a specified time frame (for example 2 years). However, the government has noticed the trend in developers stalling approval so that contracts of sale can be cancelled, and the properties re-sold at a higher price to new purchasers. For this reason, the Sale of Land Act Amendment Bill 2018 (Vic) was introduced into Parliament last year to place stricter rules on when developers can cancel contracts of sale.

  • Liquidation – apart from the developer cancelling the contract of sale, the contact may be put in jeopardy if the developer goes into liquidation. Although each contract of sale grants the purchaser different rights, there is a risk that the property will remain unfinished and you will not be able to get your deposit refunded.
  • Dimensions – the local council or authority may place conditions on approving the developer’s plans. The most common condition being that a certain percentage of the development is to be used for common property, such as outside gardens or walkways. To comply with the conditions, the developer may be required to reduce the area of your property to make room for the common property. However, the contract will usually provide a safeguard prohibiting the developer from making substantial changes to the area of your property.
  • Exclusions – you should make sure the off the plan contract lists everything to be included in the property and question anything you have seen in the display suite which is missing. The most common trap being that integrated fridges or dishwashers are excluded in the purchase price.

Given the risks of buying an off the plan property, we recommend you seek legal and financial advice prior to signing the contract of sale. If you need assistance understanding your off the plan contract and conveyance, please contact a member of the Taurus Legal Management team on (03) 9481 2000.

Posted by Taurus Legal Management