Last updated: February 2026
Legislation current as at February 2026.
Real estate agents drafting contracts in Victoria must understand the strict legal limits on what they are permitted to prepare, particularly when it comes to drafting special conditions in contracts of sale or leases. This is not a technical grey area – and it is certainly not a risk-free practice.
Under Victorian law, estate agents are strictly limited in what they can prepare. Stepping outside those limits can expose an agent to criminal penalties, civil liability, and personal financial risk, including situations where professional indemnity insurance may not respond.
For real estate agents and agency principals, this is an area that should be approached with caution and clarity.
What does the legislation say?
The Legal Profession Uniform Law (Victoria)
Section 10(1) of the Legal Profession Uniform Law (Victoria) 2014 provides that a person must not engage in legal practice unless they are a qualified Australian legal practitioner.
The maximum penalty for breaching this provision is:
- imprisonment for up to two years, or
- 250 penalty units (indexed annually), or
There is a limited exemption to this prohibition.
Section 10(1) does not apply to certain entities declared under the Uniform Rules, including:
“a land agent performing work in respect of instruments the person is entitled to draw, fill up or prepare and to charge for, under a law of a jurisdiction or of the Commonwealth.”
This exemption is narrow and must be read alongside the Estate Agents Act 1980 (Vic).
Section 53A of the Estate Agents Act 1980 (Vic)
Section 53A provides that an estate agent or agent’s representative is not guilty of engaging in unqualified legal practice only because they fill out:
- a standard form contract permitted by regulation; or
- a contract prepared by:
- an Australian legal practitioner; or
- a licensed conveyancer within the meaning of the Conveyancers Act 2006 (Vic).
Importantly, this exemption does not apply if the agent fills out the form for, or in expectation of, any fee, gain or reward other than the appropriate commission.
In practical terms, the legislation permits an estate agent to fill in the blanks of an approved standard form document – and nothing more.
What does “fill up” actually mean?
The phrase “fill up” is not defined in section 53A, and there is no Victorian case law directly interpreting its scope.
However, the accepted and conservative interpretation – adopted by regulators, insurers and practitioners – is clear:
- estate agents may complete existing fields in standard form documents
- estate agents must not draft, amend or add clauses
- estate agents must not insert special conditions
- estate agents must not negotiate legal terms
Drafting, modifying or negotiating contractual terms is legal work. Legal work may only be carried out by a qualified legal practitioner.
Why estate agents are not legal agents in the true sense
The High Court has previously observed that the use of the word “agent” in “estate agent” can be misleading.
An estate agent does not have general authority to act on behalf of a vendor in relation to the legal terms of a contract.
This distinction is reinforced by the REIV Exclusive Sale Authority (ESA), which:
- defines the services provided by an estate agent as primarily introductory
- does not appoint the agent as a full legal agent of the vendor
- does not authorise the agent to undertake legal work
By contrast, a lawyer is a true legal agent for the vendor or purchaser. A lawyer’s role extends beyond introduction and marketing to include legal advice, risk management, drafting enforceable terms and protecting the client’s legal interests.
Why drafting special conditions is particularly risky
Even setting aside the legislative prohibitions, the commercial and personal risks of drafting special conditions are substantial.
Example 1: poorly drafted building condition
An estate agent drafts a special condition making a contract “subject to building inspection by purchaser”. The clause does not define the scope of the inspection or restrict the grounds on which the purchaser may terminate.
The purchaser later withdraws from the contract for unrelated reasons and relies on the wording of the clause to do so.
The vendor’s solicitor, who was not involved in drafting the clause, advises that the condition is unenforceable. The sale collapses, and the vendor suffers loss. The vendor then brings a claim against the estate agent.
Example 2: GST error on vacant land
An estate agent acting for the vendor of vacant land completes a contract note for a sale price of $1,000,000 and assumes that GST is not payable.
It later becomes apparent that GST applies. The vendor is left more than $90,000 out of pocket.
The vendor seeks to recover the shortfall. The estate agent is the obvious defendant.
Personal exposure and insurance risk
A further issue that is often overlooked is insurance.
If an estate agent, in their capacity as an employee, goes outside the scope of their lawful role by drafting legal terms contrary to the Estate Agents Act and the Legal Profession Uniform Law, that conduct may fall outside professional indemnity insurance coverage.
In those circumstances, the agent may be personally exposed, even if acting with good intentions or at the client’s request.
How these principles apply to leases
The same principles apply to leasing transactions.
Managing agents frequently use standard REIV commercial or retail lease templates. While agents may complete the schedule fields, they must not:
- draft special conditions
- amend operative clauses
- negotiate legal terms on behalf of landlords or tenants
Negotiating or drafting the legal terms of a lease is legal practice. It is not authorised by section 53A of the Estate Agents Act.
When should legal advice be obtained?
The safest and most appropriate approach is simple.
Estate agents should consistently advise that:
- vendors and purchasers obtain legal advice before contracts are issued
- landlords and tenants have leases drafted or reviewed by lawyers
- any request to “just add a condition” is declined
This approach protects the transaction, the client, and the agent.
Key takeaways
- Real estate agents in Victoria are only permitted to fill in approved standard form documents
- Drafting special conditions or negotiating legal terms is unqualified legal practice
- Breaches can result in criminal penalties and civil liability
- Professional indemnity insurance may not respond if agents act outside their lawful role
- Referring clients to lawyers protects both the transaction and the agent
FAQs
Can real estate agents draft special conditions in Victoria?
No. In Victoria, real estate agents are generally limited to filling in approved standard form documents. Drafting special conditions or changing legal terms may be considered legal practice and should be done by a qualified lawyer (or, where permitted, a licensed conveyancer).
What does “fill up” a contract mean?
“Fill up” means completing existing blanks in an approved standard form, such as names, property details, price and settlement date. It does not mean adding clauses, rewriting terms, or creating special conditions.
Can an estate agent negotiate contract or lease terms?
Generally, no. Negotiating legal terms or advising on legal clauses can amount to legal practice. Agents should refer clients to a lawyer to draft, amend or negotiate contract or lease terms.
What are the penalties for unqualified legal practice?
Unqualified legal practice can attract serious penalties, including fines and imprisonment. It may also lead to civil claims if a client suffers loss because of improperly drafted or negotiated terms.
Does professional indemnity insurance cover agents who draft legal terms?
Not always. If an agent acts outside the lawful scope of their role, professional indemnity insurance may not respond. That can leave the agent personally exposed to claims.
Do the same rules apply to leases?
Yes. Agents can usually complete schedule details in standard lease templates, but drafting special conditions or negotiating legal terms should be handled by a lawyer to avoid unqualified legal practice risks.
How MST Lawyers can help
MST Lawyers property lawyers regularly advises:
- vendors and purchasers on contract preparation and risk
- landlords and tenants on lease drafting and negotiation
- real estate agencies navigating compliance and liability issues
- agents facing disputes arising from contract or lease defects
Our role is to ensure that legal work is carried out by the right people – and that estate agents are not exposed to unnecessary risk.
