As Is Where Is Clause in Victoria: Section 32 & Contract Guide

Plain English Definition

"As Is Where Is" means that the purchaser agrees to buy the land, existing buildings, and chattels in their current physical and legal condition at the time of contract execution, defects included. The vendor provides no guarantee or warranty regarding the structural stability, mechanical functionality, cosmetic finish, or statutory compliance of any improvements on the title. If you discover severe subterranean termite damage, defective subfloor stumps, or an unapproved pergola post-settlement, the legal and financial responsibility falls solely on you. In real estate conveyancing, this clause serves as the contractual enforcement of caveat emptor—let the buyer beware.

Who This Affects

• Purchasers: Carries the entire burden of inspecting, uncovering, and accepting physical defects, illegal modifications, and unpermitted building works, surrendering almost all post-settlement claims against the vendor.
• Vendors: Establishes a contractual defence against post-settlement demands for repairs, price reductions, or delay damages arising from pre-existing disrepair or non-compliant structures.
• Auction Bidders: Operates under the highest exposure because standard auction terms in Victoria are entirely unconditional upon the fall of the hammer, leaving zero cooling-off rights to reconsider physical defects.

The Danger Zone: Buyer's Risk

• Unpermitted Building Additions: Decks, rear extensions, garages, or carports constructed without required council building permits or occupancy certificates from the relevant municipal building surveyor can trigger municipal building orders, retrospective fees, or mandatory demolition under the Building Act 1993 (Vic).
• Subfloor and Foundation Movement: Reactive clay soils across parts of Victoria regularly cause footing movement, foundation cracking, and stump rot; repairing or restumping an affected dwelling often costs between $15,000 and $45,000.
• Undisclosed Pest Infestations: Termites and wood-boring insects frequently compromise structural roof trusses and bearers beneath fresh plasterboard, which an "as is" clause prevents you from contesting once contracts exchange.
• Defective Mechanical Services: Ducted climate control units, hydronic heating systems, solar inverters, and hot water storage units may appear operational during a 30-minute open inspection but fail completely upon settlement, requiring thousands of dollars in replacements.
• Non-Compliant Safety Assets: Inadequate swimming pool and spa safety barriers, missing hardwired smoke alarms, or obsolete porcelain-fuse switchboards shift immediate rectification liabilities onto the purchaser the instant title transfers.
• Encroachments and Boundary Anomalies: Boundary fences rarely match the certificate of title precisely; accepting a parcel "where is" restricts your ability to demand that the vendor realign boundary fences or compensate for minor boundary encroachments.

What to Check Before Signing

1. Book an Independent Building and Pest Inspection: Hire a qualified, insured building consultant to prepare a written report under Australian Standards AS 4349.1 and AS 4349.3, explicitly checking subfloor spaces, roof cavities, and structural load points.
2. Scrutinise the Vendor Statement: Examine the Section 32 / Contract of Sale alongside a licensed conveyancer or property lawyer, paying particular attention to council planning certificates, building permits issued within the past seven years, and owner-builder inspection reports.
3. Run a Hands-On Services Audit: Test every wall-mounted air conditioner, rangehood, oven, window sash, sliding door track, and external gate latch personally during scheduled private inspections prior to signing an offer.
4. Order a Identification Survey: Commission a licensed cadastral surveyor if the perimeter fences appear misaligned, particularly on older inner-suburban blocks where adverse possession or historical boundary creep may affect the true land area.
5. Draft Targeted Special Conditions: Instruct your legal representative to qualify or strike through blanket "As Is Where Is" special conditions, replacing them with vendor warranties that confirm mechanical appliances will be delivered in working order at settlement.

Key Victoria Rules

A Victoria property contract incorporates general conditions under the standard Law Institute of Victoria / Real Estate Institute of Victoria (LIV/REIV) contract form alongside the vendor's statutory disclosure in the Section 32 / Contract of Sale. General Condition 24 of the standard contract obliges the vendor to deliver the property at settlement in the same condition it was in on the contract date, fair wear and tear excepted. However, this rule only safeguards against new deterioration occurring during the settlement period—it offers zero protection against pre-existing structural flaws or cosmetic damage covered by an "As Is Where Is" special condition. While section 32 of the Sale of Land Act 1962 (Vic) compels vendors to disclose statutory charges, zoning restrictions, and building permits issued across the prior seven years, it does not force vendors to disclose patent physical defects or unpermitted works built before that seven-year window. Purchasers entering private treaty contracts retain a three-business-day cooling-off period under section 31 of the Sale of Land Act, but buyers at auctions—or within three clear business days before or after an auction—forfeit this exit mechanism entirely.

Real-Life Victoria Scenario

Jack purchased a 1970s brick veneer home in Box Hill at auction, signing an unconditional contract that contained a strict "As Is Where Is" special condition. Three weeks after taking possession, seasonal downpours revealed that an uninsulated rear sunroom leaked water directly into the subfloor, rotting the bearers and causing severe floor sagging. Whitehorse City Council issued a Building Notice upon inspecting the structure, noting the room had been erected without building permits or drainage engineering a decade earlier and demanding full demolition. Because the vendor made no statutory misrepresentations in the Section 32 / Contract of Sale and the works predated the seven-year disclosure threshold, the loss rested entirely on the buyer. Rectifying the structural footings, removing the unpermitted addition, and restoring the external brickwork cost Jack $38,400 out of pocket.

Investing a few hundred dollars in an independent pre-auction building inspection provides the only dependable shield against inheriting costly unapproved renovations.

Frequently Asked Questions

Does an "As Is Where Is" clause override a vendor's Section 32 disclosure duties?

No. An "As Is Where Is" special condition cannot extinguish a vendor's statutory obligations under the Sale of Land Act 1962 (Vic). If a vendor deliberately conceals notices from authorities, hides known statutory encumbrances, or provides false information regarding building permits issued in the previous seven years, the purchaser may retain rights to rescind the contract prior to settlement under section 32K of the Act.

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

Yes, you can request contract amendments through your conveyancer before signing a private treaty offer. While vendors often resist full deletion of the clause, you can negotiate tailored carve-outs, such as inserting a special condition that makes the purchase subject to a satisfactory building inspection or mandating that all built-in appliances remain operational up to settlement day.

What happens if a cooktop or heater breaks down between signing and settlement?

Under General Condition 24 of the standard Victoria property contract, the vendor must deliver the property in the condition it was on the day of sale, fair wear and tear excepted. If an appliance worked on the contract date but breaks down completely during the settlement window, the vendor must generally repair or replace it, provided the contract does not contain an express special condition overriding this protection.

Does signing an "As Is Where Is" contract forfeit my three-day cooling-off right?

No, the inclusion of an "As Is Where Is" clause does not extinguish your statutory cooling-off rights under section 31 of the Sale of Land Act 1962 for private treaty sales. However, cooling-off rights never apply if you bought the property at auction, within three clear business days before or after an advertised auction, or if the buyer is an incorporated company.