Pre-contractual advice and Special Conditions

Should I get pre-contractual advice?

The short answer is ‘yes, absolutely‘.

Whether you are buying at auction or by private agreement, pre-contractual advice is strongly recommended.

Why?  Other than peace of mind, there are many reasons to seek pre-contractual advice.  These include:

  • to assess the accuracy of the information contained in the vendor’s statement;
  • advise as to your ‘cooling off’ rights;
  • to assess any Special Conditions or to recommend and draft any Special Conditions to benefit you (such as building and pest inspections, warranties as to all appliances working, removal of rubbish and any other requests you would like to make);
  • to ensure you fully understand your obligations under the Contract of Sale and what can be done if something goes wrong;
  • obtaining pre-contractual advice could avoid costly errors down the track.


Can the estate agent draft a Special Condition?

The short answer is ‘no‘.  Section 53A of the Estate Agents Act allows an estate agent to merely fill in a Contract of Sale, usually what is contained in the ‘Particulars of Sale’.

Unfortunately, we have seen many clients faced with pre-settlement issues resulting from poorly drafted Special Conditions.  Special Conditions should always be drafted by a lawyer who can ensure the condition is drafted such that each party fully understands their obligations under the condition and what their rights are if a default occurs.

For example, a Special Condition which states “the vendor will repair the front gate” does not state who is liable for the cost of the repair, it does not state when the repair will be done and it does not state what happens if the repair is not done.

Purchasing a property is a big step; it is always better to take the time to get it right the first time around to avoid possible problems later down the track which could turn out to be costly.

For more information talk to our experienced staff, call us today.


Please note, the above contains very general information on the subject matter and should not be regarded as legal advice.  Legal advice should always be sought as to your specific circumstances.