As Is Where Is Clause in South Australia Property Contracts

Plain English Definition

"As Is Where Is" means that the purchaser agrees to acquire the land, dwelling, and improvements in their precise physical, legal, and operational condition at the time of contract execution, without any representation, warranty, or obligation on the part of the vendor to carry out repairs. The vendor accepts zero responsibility to fix structural flaws, resolve cosmetic deterioration, remove rubbish, or guarantee that services and appliances function. In a South Australia property contract, this clause hardens the common law principle of caveat emptor ("let the buyer beware") into an explicit, legally binding condition that prevents the purchaser from raising formal requisitions or claiming compensation for pre-existing physical defects prior to settlement.

Who This Affects

• Purchasers: Buyers bear the entire financial and logistical burden of existing faults, unapproved structures, deferred maintenance, and rubbish disposal, losing the right to demand pre-settlement rectification for known or unknown physical defects.
• Vendors: Sellers—particularly deceased estates, mortgagees in possession, or non-occupant investors—use the clause to limit post-contract liability, eliminate disputes over maintenance, and ensure settlement proceeds without price renegotiations.
• Mortgage Lenders & Insurers: Financiers may refuse formal loan approval or place retentions on loan drawdowns if property defects uncovered under an "as is" condition cause the security valuation to fall below the purchase price or reveal uninsurable structural hazards.

The Danger Zone: Buyer's Risk

• Unapproved Alterations and Additions: Decks, carports, verandahs, or converted sheds constructed without council approval under the Planning, Development and Infrastructure Act 2016 (SA) become the buyer's legal headache. If the local municipal council (such as the City of Salisbury or City of Adelaide) issues an enforcement notice after settlement, the buyer must pay for retrospective approval or demolition costs, which routinely exceed $10,000.
• Concealed Structural and Termite Damage: Latent defects—such as reactive clay foundation movement, subfloor rot, or extensive termite damage—are absorbed entirely by the purchaser. Remedying cracked foundation footings or replacing compromised roof trusses in suburban Adelaide can easily cost between $25,000 and $70,000.
• Chattels and Rubbish Disposal: The vendor is under no contractual obligation to clear stockpiled building waste, hazardous materials, disused vehicles, or green waste. Clearing several tonnes of legacy rubbish, including licensed removal of brittle fibro asbestos sheets, can add $3,000 to $8,000 to the buyer’s initial move-in costs.
• Inoperable Fixtures and Capital Plant: Ducted air conditioners, solar inverters, gas heaters, and swimming pool pumps that are broken at the date of signing do not have to be repaired by the vendor. Replacing a burnt-out multi-head split system or an underground pool filtration pump immediately costs $4,000 to $12,000.
• Boundary Encroachments and Fencing Liabilities: Outdated or absent surveys often conceal boundary fences erected outside the registered title boundary. Under an "as is" term, the buyer inherits existing boundary disputes with neighbours and potential liabilities under the Encroachments Act 1944 (SA) or the Fences Act 1975 (SA).
• Plumbing, Drainage, and Septic Failures: Blocked clay pipes, broken stormwater drains, or non-compliant on-site wastewater systems (septic tanks) become the sole responsibility of the buyer. Replacing a failed septic tank and absorption trench on a peri-urban allotment can cost upwards of $15,000.

What to Check Before Signing

1. Commission a Thorough Independent Inspection: Engage a qualified, insured building consultant and a licensed timber pest inspector to comb through the property, crawl into the subfloor, and enter the roof cavity before you sign the contract or waive your cooling-off rights.
2. Cross-Reference the Form 1 Disclosure: Thoroughly examine the statutory Form 1 Vendor Disclosure Statement to identify registered encumbrances, easements, heritage listings, environmental notices under the Environment Protection Act 1993 (SA), or unpaid council orders.
3. Inspect the Council Records via PlanSA: Verify that all habitable extensions, carports, and swimming pools have valid development approvals and certificates of occupancy registered on the South Australian development register or local council property files.
4. Test Every Mechanical System and Appliance: Personally test all reverse-cycle air conditioners, oven elements, cooktops, rangehoods, hot water units, automatic roller doors, and reticulation systems during an open inspection to catalog exactly what is already dead or defective.
5. Instruct Your Conveyancer to Tailor the Clause: Request that your conveyancer draft protective amendments to the standard REISA Contract condition, such as requiring the seller to remove all loose chattels and rubbish, or warranting that key appliances are in working order at settlement.

Key South Australia Rules

Under the standard REISA Contract (Contract for Sale of Land) and the governing Land and Business (Sale and Conveyancing) Act 1994 (SA), an "As Is Where Is" special condition cannot override a vendor's statutory disclosure obligations. Even with an aggressive "as is" clause, the vendor must serve a legally complete and accurate Form 1 disclosure statement setting out all prescribed encumbrances, charges, and statutory orders affecting the land. Furthermore, purchasers retain their non-excludable statutory cooling-off right under Section 5 of the Act, which grants two clear business days from the service of the Form 1 (or the date of contract execution, whichever occurs later) to terminate the transaction without penalty, saving only their holding deposit of up to $100.

Real-Life South Australia Scenario

Tomás purchased a 2004-built townhouse in Mawson Lakes under a standard REISA Contract that featured a vendor-drafted "As Is Where Is" special condition. During the final pre-settlement inspection two days before settlement, Tomás observed that the central ducted evaporative cooling unit had completely seized up and the rear timber retaining wall had bowed outward by fifteen centimetres due to heavy winter moisture. His conveyancer reviewed the special conditions and advised that the "As Is Where Is" clause strictly held Tomás to the state of the improvements at the contract date, with no vendor warranty covering working mechanical plant or general site stability. To avoid defaulting on settlement and facing penalty interest of over $120 per day, Tomás had to absorb an immediate $4,600 replacement cost for the ducted system and secure a $12,500 contractor quote to reconstruct the failing retaining wall. Rushing into an unvetted purchase without a professional structural appraisal beforehand transforms the vendor's deferred maintenance directly into the buyer's unrecoverable capital debt.

Frequently Asked Questions

Does an "As Is Where Is" clause excuse the vendor from providing an accurate Form 1?

No. The requirement to provide an accurate Form 1 statutory disclosure under the Land and Business (Sale and Conveyancing) Act 1994 (SA) is a strict statutory duty that private contract terms cannot displace. If the vendor fails to disclose an existing council notice, heritage constraint, or registered easement, the purchaser maintains legal remedies, which may include rescission of the contract or seeking damages for fraudulent or negligent non-disclosure.

Can I use the South Australian statutory cooling-off period to walk away from an "As Is" contract?

Yes, provided the sale was by private treaty and not by public auction. In South Australia, buyers have a non-waivable right to cool off within two clear business days after the service of the Form 1 or signing the contract (whichever is later). If your independent building inspection takes place within this window and reveals catastrophic structural or pest damage, you can terminate the REISA Contract by serving valid written notice, forfeiting no more than your initial $100 holding deposit.

What happens if the property suffers new damage between contract signing and settlement?

The "As Is Where Is" condition establishes the property's baseline condition at the date the contract is signed; it does not give the vendor licence to cause damage or neglect the property thereafter. Under standard REISA Contract provisions, the vendor remains bound to deliver the property at settlement in the same condition it was in at the contract date, fair wear and tear excepted. If severe accidental damage occurs prior to settlement, risk provisions and standard common law principles allow the buyer to demand repairs or insurance claim assignments.

Will a bank or mortgage lender accept an "As Is Where Is" special condition?

Lenders evaluate the contract alongside an independent bank valuation. If the bank’s valuer notes extensive structural cracking, illegal building works, or hazardous conditions on the security property, the valuation will be marked with a "conditional" or "unsatisfactory" rating. This can prompt the lender to decrease the borrowing amount, demand that funds be withheld in escrow until repairs are complete, or decline loan approval entirely.