Updated 25 October 2026
Off the Plan Potential Problem #15: Limited Inspections
An off-the-plan purchase can become binding before there is a completed home to inspect. When access finally becomes available, the settlement deadline may be close. The practical response is to address inspection rights before exchange, arrange an independent assessment when access is available, and send any concerns to your solicitor promptly. Waiting until you collect the keys can make evidence harder to obtain and leave less time to consider contractual remedies.
Limited access does not mean a buyer has no protection. Equally, discovering a defect does not automatically allow you to refuse settlement. Your position depends on the contract, the nature of the problem and the applicable legal rights. At CM Lawyers, we recommend planning the inspection alongside the legal review, rather than treating it as a last-minute formality.
Agree inspection access before exchanging contracts
Ask when you and an independent building consultant can inspect, how much notice you will receive and whether a follow-up visit is permitted after repairs. Check whether access covers your parking space, storage and relevant shared areas. The NSW Government’s off-the-plan guidance specifically recommends asking about visits during construction. Do not assume every contract provides the same inspection arrangements.
Where possible, negotiate enough time for the consultant to report and your solicitor to assess the findings before completion. Keep any agreed access arrangements in writing. Construction-stage visits need permission and appropriate safety arrangements; signing a purchase contract does not give you unrestricted access to a building site. If access is refused or repeatedly postponed, tell your solicitor and retain the correspondence.
Choose an independent inspection with a clear scope
Engage a suitably qualified consultant with relevant experience and professional indemnity insurance. NSW inspection guidance identifies licensed builders, surveyors and architects as examples. Confirm what the fee covers. An ordinary visual building report may exclude cosmetic defects, service testing and inaccessible areas. Request a scope suited to a newly completed apartment, including comparison with the finishes and inclusions you contracted to receive.
Provide the relevant plans, specifications and approved variations before the visit. Ask the consultant to distinguish observed problems from suspected causes and identify any specialist assessment needed. Agree when the written report will be available so it can inform your solicitor’s advice.
Make the final inspection systematic
Work through the property room by room. Compare cabinetry, benchtops, tiles, glazing and appliances with the contractual schedule. Check accessible doors and windows, visible signs of moisture, incomplete work and obvious damage. Arrange appropriate functional checks where services are connected and the inspection scope allows. Confirm the identification and accessibility of parking and storage rather than relying on a display-suite diagram.
Record what could not be checked and why. Missing electricity, locked areas or unfinished work can prevent a meaningful assessment. Ask whether another visit can be arranged once those restrictions are removed. Keep a single defects list with dated photographs and numbered items so the developer, consultant and solicitor can refer to the same concerns without confusion.
Understand what an inspection and certificate cannot prove
A visual inspection cannot establish the condition of every concealed waterproofing membrane, structural connection or fire-safety component. Some leaks only become apparent during rain or regular occupation. A report that identifies no visible problem is not insurance against future defects. Read its exclusions and act on recommendations for additional investigations.
An occupation certificate serves a different purpose. It concerns the statutory requirements for occupation and use. The Building Commission NSW information sheet reproduced by The Hills Shire Council explains that certifiers do not supervise builders or certify compliance with every building-contract requirement. Suitable for occupation does not necessarily mean every item of work is complete. Obtain the relevant certificate, but still arrange your own inspection.
Separate defects from changes to the promised property
A cracked tile, a substituted appliance and an altered floor plan raise different questions. Your solicitor needs the report and the contract to identify whether the issue concerns workmanship, an agreed inclusion, an authorised variation or a statutory disclosure problem. Keep the original plans and every later version, including the date each change notice arrived.
Under the relevant off-the-plan disclosure regime, certain inaccuracies in material particulars can give conditional rights to rescind or seek compensation. The change must adversely affect use or enjoyment, subject to statutory definitions and exclusions. The buyer must also establish that they would not have contracted had they known and that they are materially prejudiced. The Registrar General’s guidance explains the generally applicable 14-day period for exercising these rights after notification or service of a registered plan revealing the inaccuracy. Obtain advice immediately rather than waiting for the final inspection.
Get advice before withholding settlement
A defects list alone is not permission to retain part of the purchase price or postpone completion. The contract may require settlement despite particular defects, with rectification addressed afterwards. Other circumstances may support a different remedy. Your solicitor should assess the actual wording, evidence and deadlines before you decide how to respond.
If the parties agree on repairs, a retention or a revised completion date, document precisely what has been agreed. Identify the work, responsible party, timing and arrangements for checking completion. Do not rely solely on an oral promise that everything will be fixed after handover. Obtain advice before signing any acknowledgement or release concerning the defects.
Statutory warranties can continue after settlement
The Home Building Act 1989 provides statutory warranties for residential building work, including due care and skill, suitable materials and compliance with the law. Applicable protections can extend to subsequent owners. Settlement does not automatically extinguish those rights, and a short contractual defects period should not be confused with the statutory framework.
The usual statutory warranty periods are six years for major defects and two years for other defects, running from completion of the work. They do not restart when you purchase or move in. Major defect has a specific legal meaning; an expensive repair is not automatically within that category. A further six months may be available where the breach becomes apparent in the final six months of the relevant period. Have your solicitor calculate the deadline using the project’s records.
A real NSW case involving concealed building issues
In The Owners – Strata Plan No 66375 v King [2018] NSWCA 170, the owners corporation pursued building-defect claims arising from a warehouse conversion in Camperdown. The Court of Appeal allowed its appeal against the developers. The majority held that their statutory-warranty liability extended to relevant design defects causing non-compliance with building requirements. The disputed items included fire-protection measures in concealed spaces.
For buyers, the practical lesson is that a walk-through cannot answer every technical compliance question. The case did not establish a general right to cancel an off-the-plan purchase for defects. Any claim still requires assessment of the applicable law, responsible parties, evidence and time limits.
Include common property and preserve your rights
Apartment defects can involve common property, including shared building systems. Notify the strata manager or committee and coordinate with the owners corporation where appropriate. For eligible developments, the Strata Building Bond and Inspections Scheme provides a separate inspection and rectification process. It does not replace your own inspection or guarantee funding for every defect.
Notify the relevant builder or developer promptly in writing. Preserve evidence, take reasonable steps to limit further damage and obtain advice about reasonable access for assessment or repairs. Building Commission NSW can assist with relevant complaints, but complaint handling and negotiations do not necessarily protect a proceedings deadline. Its inspectors investigate specified dispute items rather than conducting a general survey. NCAT or court proceedings may be necessary, depending on jurisdiction and the claim.
Bring your inspection report, contract and correspondence to CM Lawyers for off-the-plan advice. We can help assess the legal significance of identified issues and the response available before or after settlement. Contact our team promptly if access is restricted or defects emerge. This article provides general information, not advice about a particular purchase.
Key resources
NSW guidance on buying off the plan — Questions to raise about site access, contract terms and design changes.
NSW inspection report guidance — Choosing a qualified consultant and understanding report limitations.
Building Commission NSW certifier information sheet — Council-hosted official information on pages 4–6 explaining certification responsibilities and limits.
NSW Registrar General off-the-plan guidance — Material changes, disclosure requirements and conditional purchaser remedies.
NSW statutory warranty guidance — Explains residential building warranties and the significance of completion dates.
The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 — Official judgment concerning developer liability and design defects.
Building Commission NSW defect complaints and resolving building disputes — Complaint pathways, inspection scope and proceedings deadlines.
Strata Building Bond and Inspections Scheme — The separate inspection and rectification process for eligible strata developments.
