A warning for all conveyancers: There are weird, wonderful, downright outlandish contract clauses lurking in the fine print
The day started like most others in my conveyancing practice, a scan of my inbox with a coffee to check for notes from my clients and news on live projects. The highly anticipated draft of a sale contract had come through, so I immediately got stuck in to reviewing it.
Not long after I’d got into the fine print, I read this incredible clause:
NO WARRANTY AS TO INCLUSIONS
The vendor makes no warranty that the inclusions noted on the front page of this contract exist as at the date of this contract.
I rubbed my eyes, finished my coffee with a gulp, and read it again. And yes, it really was saying that, whatever inclusions were stipulated on the front page of the contract as being included in the sale, these inclusions were not actually guaranteed to be included in the sale.
Missing something so fundamental is every conveyancer’s nightmare. Imagine the problematic awkwardness realising at a pre-settlement inspection that the light fittings and dishwasher, which were contracted inclusions, had disappeared. And thanks to an incredible clause like this lurking in the fine print, there’s absolutely nothing you can do about it, except apologise profusely to your client and get ready for a knock to your reputation.
Perhaps more outlandish than the clause itself, was the stern rejection to our kind request to have it removed. The vendor was quite determined to keep it in – and why not, that clause is worth its weight in white goods – but thankfully, after further determined appeals to common sense and reason, we were successful in getting it taken out.
Clauses so weird and wonderful, we can miss them
Of course, every conveyancer knows how imperative it is to check the fine print, attention to detail is in our blood. The lesson here is more nuanced, in that this clause is so ridiculous, yet so short and sweet and so matter of fact, it can slip under the radar of the most scrutinising conveyancer – hiding in plain sight, simply because we’re not expecting to see something so outrageous. Trust me, I’ve seen it happen.
So, to all my fellow conveyancers, I say be prepared for absolutely anything next time you review a sale contract, and do not assume your professional colleagues on the other side will be as ethical as you. Leave yourself time to let every line sink in.
I designed Contrax, a specialist conveyancing software platform, to enhance the efficiency and accuracy of contract review and negotiation, which has revolutionised the contract review process and the profit margin of my practice.
It’s also enhanced my capability to ensure nasty clauses like this never get anywhere near my clients.
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Contrax is an Australian, family-owned software platform, co-founded and operated by husband and wife team – Judith Hammerschlag (lawyer and conveyancer), and Danny Sandler (business operations). To find out more visit contrax.com.au call 02 9884 7473 during Australian business hours.
