As Is Where Is Clause in Tasmanian Property Contracts

Plain English Definition

"As Is Where Is" means that the purchaser accepts the property in its current physical condition, design state, and legal posture at the date of the contract, completely waiving any right to demand that the vendor carry out repairs, obtain retrospective permits, or remove left-behind rubbish before settlement. This clause places the entire risk of patent and latent defects squarely upon the buyer's shoulders, neutralising any expectation that the vendor guarantees the property's state of repair or statutory compliance. In an Australian and particularly a Tasmania property contract, the phrase reinforces the common law doctrine of caveat emptor—let the buyer beware—by contractually extinguishing disputes over existing faults.

Who This Affects

• Property Buyers: Must absorb the total cost of addressing unapproved structures, deferred maintenance, boundary anomalies, and hidden structural damage discovered either before or after completion.
• Property Vendors: Minimises post-exchange disputes, shielding sellers—frequently deceased estates, financial institutions exercising power of sale, or remote investors—from claims for compensation or demands for repair work.
• Auction Bidders and Unconditional Purchasers: Face an unyielding contractual baseline where the fall of the hammer binds the purchaser to the land and improvements in whatever condition they stand, precluding standard contract requisitions on physical presentation.

The Danger Zone: Buyer's Risk

• Latent structural failures: Undetected subsidence, cracked foundation footings, and rotting internal framing remain entirely the buyer's problem, leaving no legal avenue to seek price reductions even if remediation requires $40,000 or more in underpinning.
• Unapproved building works and council notices: Sheds, carports, decks, or wall removals carried out without plumbing permits or building approvals under the Building Act 2016 (TAS) transfer to the buyer, who must bear the full cost of retrospective certification or council-ordered demolition.
• Asbestos, contamination, and environmental hazards: Friable asbestos behind wet-area wall linings or contaminated ground from old domestic heating-oil tanks cannot be required to be removed by the vendor, generating cleanup bills that frequently exceed $15,000.
• Rubbish, abandoned vehicles, and debris: Unless a tailored special condition mandates complete site clearance, the vendor can leave broken building materials, overgrown green waste, and discarded whitegoods throughout the grounds without breaching the contract.
• Non-functioning services and appliances: Built-in heat pumps, ovens, septic systems, hot water cylinders, or bore pumps that fail prior to settlement do not have to be fixed or replaced if the vendor has excluded representations regarding functional order.
• Boundary discrepancies and encroaching fences: Differences between physical boundary fences and the formal title diagram registered with the Land Titles Office become the buyer's issue to regularise, sometimes requiring adverse possession applications or costly fence realignments.

What to Check Before Signing

1. Commission an independent building and timber pest inspection: Engage a licensed building surveyor or accredited inspector operating under Australian Standard AS 4349.1 to uncover concealed moisture, structural defects, pest activity, and non-compliant alterations before making an unconditional offer.
2. Order a Section 337 Council Certificate early: Apply to the relevant municipal council under the Local Government Act 1993 (TAS) to reveal outstanding building notices, unfinalised permits, planning contraventions, and public health liabilities affecting the land.
3. Inspect title folios and survey plans via the LIST: Examine the Land Titles Office folio text and plan on the Land Information System Tasmania (the LIST) to identify registered easements, covenants, rights of way, and whether existing structures encroach on boundaries or service lines.
4. Test all mechanical systems and fixed fixtures manually: Walk through the home during a private inspection and turn on heat pumps, exhaust fans, stovetops, taps, and hot water units to establish their working baseline prior to submitting an offer.
5. Instruct your conveyancer to amend or qualify the clause: Request that your legal practitioner draft explicit special conditions to preserve statutory rights, demand vacant possession free of personal rubbish, or require warranties that no unapproved building works were performed during the vendor's ownership.

Key Tasmania Rules

The standard Tasmanian Contract of Sale, created jointly by the Law Society of Tasmania and the Real Estate Institute of Tasmania (REIT), does not contain a statutory cooling-off period for private treaty sales. Because Tasmania does not have mandatory vendor disclosure statements like those found in Victoria or New South Wales, the legal doctrine of caveat emptor applies rigorously. When an express "As Is Where Is" special condition is written into a Tasmanian Contract of Sale, it circumvents the vendor's standard obligations regarding the good repair of chattel fixtures and limits the purchaser's ability to raise formal objections under standard contractual conditions. Unless the vendor engages in fraudulent concealment or breaches a specific statutory warranty under the Building Act 2016 or Property Agents and Land Transactions Act 2016, the purchaser assumes all physical and compliance responsibilities.

Real-Life Tasmania Scenario

Daniel submitted a contract on a 1960s weatherboard house in Glenorchy, eager to secure the home against competing interest. The vendor's solicitor inserted an "As Is Where Is" special condition into the Tasmanian Contract of Sale, which Daniel accepted while electing to skip a pre-purchase building and pest inspection.

Three weeks after settlement, persistent winter rain caused severe dampness throughout the subfloor, exposing severely rotted floor bearers and a network of unapproved, unplumbed stormwater pipes diverted directly onto an adjoining allotment. Glenorchy City Council subsequently served Daniel with a formal notice to rectify the non-compliant drainage under the Building Act 2016. When Daniel consulted a conveyancer to seek compensation from the vendor, he learned that the "As Is Where Is" clause barred any claims for undisclosed building defects or lack of statutory permits. Daniel had to pay $27,400 out of pocket to replace structural bearers, install engineered drainage, and engage a private building surveyor to sign off on the works.

Bypassing independent inspections while signing an unqualified condition converts the vendor's deferred maintenance directly into your immediate personal debt.

Frequently Asked Questions

Does Tasmania have a cooling-off period if I sign an "As Is Where Is" contract?

No. Unlike most mainland states, Tasmania does not provide an automatic statutory cooling-off period for residential property transactions under private treaty. Once both vendor and purchaser sign a Tasmanian Contract of Sale, the agreement is immediately binding unless subject to a mutually agreed conditional clause, such as subject to finance or subject to a satisfactory building report.

Can a seller use an "As Is Where Is" clause to hide deliberate misrepresentation or fraud?

No. An "As Is Where Is" clause protects sellers from innocent or negligent non-disclosure, but it does not protect against active fraudulent concealment or statutory misleading and deceptive conduct under the Australian Consumer Law. If a vendor actively conceals a major defect—such as plastering over a catastrophic structural crack immediately before an inspection while falsely answering direct enquiries—a court may find the vendor liable despite the clause.

What happens if the property is damaged by fire or storm between contract signing and settlement?

Under standard condition 5 of the standard Tasmanian Contract of Sale, the property remains at the vendor's risk until settlement or until the purchaser takes possession. An "As Is Where Is" clause generally fixes the condition to the date of the contract exchange, meaning that sudden intervening structural damage caused by external events prior to settlement must still be repaired by the vendor or covered by insurance, rather than passed onto the purchaser.

Can I negotiate to remove an "As Is Where Is" clause before submitting my offer?

Yes. Every term in a Tasmanian property contract is negotiable prior to exchange. Your conveyancer can advise you to strike the clause entirely, or modify it with qualifying text ensuring the vendor still warrants that all council permits are finalised and that all fixtures, fittings, and mechanical appliances remain in good working order upon settlement.