Like everyone else, when I’m reading the various ads in the real estate section, I see quite a few ads for properties being sold “as is.” The suggestion behind this phrase seems to be that this little two-word phrase absolves the seller (and the listing broker) from any responsibility or liability for existing physical defects with the property, or for the need to tell the buyer that certain things that might go awry somewhere down the line. As though it’s a legally sanctioned form of the old “caveat emptor,” or “buyer beware,” which basically puts all of the due diligence job on the buyer. While there is a (very) small grain of truth to this, it is by no means a blanket absolution for a seller regarding known defects.

So then what does this “as is” designation really mean? Resisting, of course, the flippant philosophical observation that almost everything in this world is sold “as is,” as opposed to “as it is not” or “as it might be if all our dreams and fantasies came true.”

California law requires that a seller of real property disclose in writing all conditions and problems that the seller knows or should know to exist. The means by which this is customarily accomplished is through a document called a Real Estate Transfer Disclosure Statement. As far as a seller’s disclosure duties, this is where the rubber hits the road. For those readers who like to read the actual statutes, the language and scope of this disclosure requirement is set forth in California Civil Code section 1102.1. This is a written disclosure, the format of which is specified by law, which requires a seller to go through an exhaustive list of attributes and characteristics and state whether there are any known problems, past, present or reasonably likely to occur in the future.

An “as is” clause does NOT exonerate the seller from the obligation to provide the Civil Code 1102 written disclosures to the prospective buyer, nor from the obligation to disclose known conditions that would affect the purchasing decision of the reasonable purchaser. Also covered are problems that a seller “should” know to exist. What does this mean? It means that even though the seller may not have set foot on the property for 15 years and thus have no idea that the floor boards are rotting to the core, if he or she “should know” that such problems exist, they must be disclosed. Intentionally blind eyes are no excuse.

From the buyer’s side, legally, all an “as is” clause does is put the buyer on notice that the sale is made without warranty, and that the property is accepted in the condition as it appears to a reasonably diligent inspection. As a matter of sound business practice, however, an “as is” clause should alert a prospective purchaser to the possibility of problems and the realization that your inspections should be extra diligent.

So, an “as is” clause is not an “anything goes” pass that allows a seller to dodge disclosure requirements. It is, however, a flag for the buyer that she should look extra carefully because there may be problems of neglect or inattention that a “reasonable inspection” will discover.

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3 Responses to What is an “as is” sale of real estate?

  1. Lesley Hoisington says:

    This post is beyond awesome. I am always wondering what to do and what not to do so I will follow some of these tips.

  2. Congratulations on having one of the most sophisticated blogs Ive come across in some time! Its just incredible how much you can take away from something simply because of how visually beautiful it is. Youve put together a great blog space –great graphics, videos, layout. This is definitely a must-see blog!

  3. devilsadvoc says:

    It should be clarified, however, that Civil Code 1102.1 (and any other code dealing with transfer disclosure) is limited in application to residential real estate one to four units ONLY. Transferring a 6-plex or a commercial building and all bets are off. The only disclosure rule for properties other than 1-4 units is that the seller must disclose any material fact that would influence a prospective buyer not to buy the property. This becomes very broad, subject to multiple interpretations, and not nearly as effective and enforceable as the residential Real Estate Transfer Disclosure Statement. The more sophisticated we become, the more we must be aware…because the protection of the law dwindles substantially.



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