Purchasing an off-the-plan property in New South Wales (NSW) can seem like a hassle-free way to secure a future home or investment. However, one often-overlooked issue that can create major headaches for buyers is access problems. Whether it’s the physical access to the property itself, complications with parking, or issues with shared amenities, access-related disputes can lead to significant legal battles and financial losses.
In this article, we’ll explore the common types of access problems in off-the-plan developments, their potential legal and financial consequences, and how NSW buyers can protect themselves from these hidden risks.
Access problems can take many forms, and in off-the-plan properties, they often arise after buyers have committed to a purchase, leaving them with limited recourse once issues are discovered. Some of the most common access issues in NSW off-the-plan developments include:
In one particularly troubling case, a young couple purchased an off-the-plan apartment in Western Sydney. Excited to move into their new home, they were dismayed to discover upon completion that the secure parking spot they had been promised was obstructed by a concrete pillar, making it impossible to park their car. The development had been marketed as offering "ample and secure parking," yet many residents faced similar issues. As the couple fought with the property management to address the problem, the stress and frustration grew.
Their financial situation worsened as they were forced to rent an expensive parking spot in a nearby lot. Despite repeated attempts to resolve the issue with the developer, the couple felt increasingly helpless as their new home became a source of stress rather than the sanctuary they had envisioned.
When access issues arise in off-the-plan properties, NSW buyers have several legal options. The first step is to document the issue thoroughly, including photographs, correspondence with the developer or property management, and any relevant sections of the contract that outline access rights.
Buyers can then lodge a formal complaint with NSW Fair Trading, which will attempt to mediate the issue between the buyer and the developer. Mediation is often the first step in resolving access disputes, but if no agreement is reached, buyers may need to escalate the matter to the NSW Civil and Administrative Tribunal (NCAT).
In cases where access problems involve significant breaches of building codes or contracts, buyers may pursue legal action through the Supreme Court of NSW. However, this can be a costly and time-consuming process, making it important for buyers to weigh their options carefully before proceeding.
In the case of Re Estate of Fisher [2021] NSWSC 301, a group of buyers purchased off-the-plan townhouses in a high-end development in Sydney’s northern suburbs. The development was marketed as offering "exclusive access" to a shared driveway and private garden areas. However, after the buyers moved in, they discovered that the developer had failed to secure legal rights of access to the shared driveway from an adjacent property, leaving them with no legal right to use it.
For the buyers, the realization that they had no legal right to access their homes via the shared driveway was devastating. Some of the residents were forced to park on the street or make lengthy detours to access their garages. One resident, a middle-aged man with limited mobility, was particularly affected, as the lack of driveway access made it nearly impossible for him to enter his home without assistance. The frustration and emotional toll on the residents were immense as they attempted to negotiate with the developer and neighboring property owners to secure access.
The residents filed a joint lawsuit against the developer, claiming that they had been misled about their access rights. The case was taken to the NSW Supreme Court, where the residents argued that the developer had failed to disclose that the driveway was not legally theirs to use. The court heard evidence that the developer had promised access in the marketing materials but had neglected to secure the legal rights needed to grant it.
The court ultimately ruled in favor of the buyers, awarding them damages and requiring the developer to negotiate an easement with the neighboring property. However, the process was lengthy, taking nearly two years to resolve, and the residents faced significant financial strain in the interim.
The financial consequences for the buyers were substantial. In addition to the legal fees, which exceeded $200,000 for the group, many of the residents faced ongoing costs related to alternative parking and accessibility modifications. The court awarded the residents $500,000 in compensation, but the lengthy legal battle and the disruption to their daily lives left lasting emotional scars.