“But No One Told Me That!”
Why your conveyancer has to go beyond the contract — or it could cost you.
When you buy a property, you’re excited. You’re picturing your new life — maybe it’s a cozy home, a second income stream, or a step toward long-term investment. You’re not necessarily thinking about zoning rules, obscure council notices, or planning restrictions buried in paperwork.
That’s exactly why you hire a conveyancer.
Sure, they’re there to handle the paperwork and facilitate settlement — but their job is much more than ticking boxes. Their real job is to protect you from hidden traps you might not even know exist.
So what happens if they don’t?
What if they ignore a detail you mentioned? Or fail to ask the right questions?
Well — recent court decisions have made it clear:
If a risk was foreseeable, and you told your conveyancer your plans, they had a duty to warn you.
(For clarity, the term “conveyancer” here also includes lawyers or solicitors handling conveyancing matters, as the same duty of care principles apply.)
This Isn’t Just Legal Theory — It’s Real Life.
Let’s talk about a real case that should make anyone pause before thinking conveyancing is just paperwork.
Case Study: McDonald v Ellis
Mr. McDonald purchased a property with a granny flat. He told his conveyancer — clearly — that he intended to rent it out for extra income.
Here’s what didn’t happen:
- The conveyancer didn’t check if the granny flat had council approval.
- They didn’t warn him that renting it out might be illegal.
- They didn’t suggest any follow-up or external advice.
After settlement, Mr. McDonald discovered the granny flat couldn’t legally be leased. It wasn’t council-approved for separate occupancy. His expected rental income? Gone.
He sued — and the court ruled in his favor.
Why?
Because he had told his conveyancer exactly what he planned to do. And once that was clear, the conveyancer had a duty to look beyond the contract and highlight potential risks.
What That Means For You
This isn’t just about granny flats — it’s about what your conveyancer is legally and professionally expected to do once they know your intentions.
If you’ve shared your plans, they need to think about anything that might derail those plans — even if the risk isn’t spelled out in the contract.
That includes:
- Zoning or planning rules (e.g. Airbnb bans, no second dwellings)
- Unapproved structures or additions
- Notices or investigations by council
- Easements, covenants, or restrictions on land use
- Lease terms or usage limitations that contradict your goals
- Asbestos history or disclosures
- Ambiguous or misleading advertising (e.g. “dual income potential”)
- Financing structures (e.g. SMSF or trust-based purchases)
- Exposure to Surcharge Purchaser Duty (SPD) for foreign or temporary residents
Courts also take into account whether you’re a first-time buyer, someone with limited property knowledge, or facing language barriers. If you’re a more vulnerable client, the courts may expect your conveyancer to take even greater care.
Here’s the kicker:
Even if you wouldn’t have known something was a problem, the law says they should have. That’s where the duty lies.
The Problem With “Narrow Retainers”
Many conveyancers try to limit their scope from the start — saying things like:
“I’m just here to review the contract and settle the deal.”
That’s what we call a narrow retainer. It’s technically legal, but practically risky.
Because if they promote themselves as experienced in property law (as most do), and if they know what you intend to do — the courts say they cannot turn a blind eye. Not just because it’s unethical, but because it’s legally unacceptable.
And while a narrow retainer or disclaimer may be raised as a defence, courts have consistently shown that if the risk was foreseeable, and the client vulnerable or reliant on their expertise, that defence may not hold up.
Could This Happen To You?
Absolutely. And it does, more often than you’d think.
If you’ve ever told your conveyancer something like:
- “We’ll probably Airbnb this when we’re not using it.”
- “We plan to knock down the shed and build a home office.”
- “It’s for our SMSF — we need to rent it out to someone else.”
- “Our daughter will live in the flat while we rent the front.”
Each of those statements is a clue about your intent.
If your conveyancer hears that and doesn’t raise possible issues, they’re putting you at risk — legally, financially, and emotionally.
The courts will ask: Was this risk foreseeable? Should a qualified conveyancer have seen the red flags? And should they have advised you, even if it wasn’t “in the retainer”?
What CM Lawyers Does Differently
At CM Lawyers, we treat your purchase like what it is — a major life and financial decision. Not just a checkbox process.
We ask questions. We listen carefully. And we read contracts with your specific goals in mind.
If something doesn’t line up — whether it’s a clause, a zoning restriction, or a title issue — we flag it.
Sometimes we’ll say, “That’s fine, just be aware of X.”
Other times, we’ll advise getting a second opinion from a planner, council, or surveyor before proceeding.
We also consider financial and tax implications — such as whether Surcharge Purchaser Duty might apply based on your residency status — and make sure you’re not blindsided.
Either way, we make sure you don’t go in blind.
Because honestly? The biggest mistake isn’t overpaying.
It’s buying something that can’t do what you thought it could.
Before You Buy, Talk to CM Lawyers
Whether it’s your first home, a future investment, or something for your family — don’t assume the paperwork alone will protect you.
Let our team walk with you through the whole process — not just the contract.
We’ll help you avoid the avoidable, catch the fine print, and protect your plans before they fall apart.
Call CM Lawyers before you sign.
Sometimes one conversation can save you thousands — and years of regret.
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