These are the implications of the ‘as is, where is’ clause

A common provision in the purchase agreement of a real estate property is the ‘as is, where is’ clause. Translated into Dutch, this literally means ‘as is, where is. You won't come across this one in the NVM model purchase agreement. Like an age clause, the ’as is, where is‘ clause is often manually added to a model. We often encounter this clause in purchase agreements for commercial real estate, but in recent years it has become much more common in purchase agreements for homes. But what exactly does such an ’as is, where is‘ clause mean for you as a buyer or seller? Lawyer Robert van Ewijk is specialized property lawyer And tells you about it in this blog!

What does the ‘as is, where is’ imply?

In short, the provision means that the buyer buys the property in the condition it is in at the time of purchase. As a buyer you thus accept that there may (hidden) defects present in the home, for which you cannot hold the seller liable under this provision. The ‘as is, where is’ provision therefore implies a major limitation of the seller's liability. This is because the seller is not liable for (hidden) defects. As a buyer, you therefore get no guarantee about the state or condition of the property.

Only if you, as a buyer, can prove that the seller knew about the defects and deliberately concealed them, or if the seller stated contrary to the truth, can the seller not invoke this provision and still be obliged to repair the defects. This is because in such a case there is a breach of the duty of disclosure.

What is special about the ‘as is, where is’ clause?

In fact, many standard purchase agreements already contain an ‘as is, where is’ clause. For example, Article 6.1 of the NVM purchase agreement states:

“The immovable property shall be transferred to the Purchaser in the condition in which it is at the conclusion of this purchase agreement, therefore with all associated rights and claims, prevailing easements and qualitative rights, visible and invisible defects and free of mortgages, attachments and registrations thereof. The Purchaser accepts this state and therefore also the public law restrictions resting on the real estate insofar as these are not ‘special encumbrances’.”

Actually, that is already a kind of ‘as is, where is’ clause. However, article 6.3 then contains a warranty. There the seller guarantees that the property is suitable for normal use as (for example) a home. Defects that do not prevent normal use are covered by the standard clause in Article 6.1 and are therefore no longer for the seller's account.

Similarities between aging clause and ‘as is, where is’ clause

Both the age clause as the ‘as is, where is’ clause are a corrective to warranties given by the seller, or to expectations the buyer may have. For example, an age clause provides that defects - even if they prevent the normal use of the property - will be borne by the buyer if they are due to age. The ‘as is, where is’ clause provides that all defects are for the buyer's account, regardless of whether they are caused by age or some other cause.

When using the NVM model purchase agreement, one can actually choose to strike out Article 6.3 and suffice with the use of Article 6.1. But to avoid ambiguity, the ‘as is, where is’ clause is often added to the end of the contract as a special clause. This makes it a bit confusing. The agreement then goes from:

• the main rule (seller not liable, Article 6.1),
• to the exception (seller does have liability for defects that prevent normal use, Article 6.3),
• to the exception (seller not liable after all, ‘as is, where is’ clause).

So you could say that when using the model NVM purchase agreement, you don't need the clause. In fact, you can then suffice with striking out Article 6.3. Because this has far-reaching consequences for the usual allocation of risks between buyer and seller, it is advisable to provide an explanation for this deletion.

Other words for ‘as is, where is’ clause

An ‘as is, where is’ clause does not necessarily have to be literally so named. You don't even have to encounter the exact words in the clause. We speak of such a clause when its purport is that the property is accepted as is and all defects are the responsibility of the buyer. The following words in the purchase agreement may indicate that you are dealing with such a clause:

• the case becomes footnotes accepted;
• the business is sold and delivered in the state it is in;
• or as it stands and with all visible or invisible defects;
• seller is not liable for defects;
• Even in the aging clause, you come across that kind of wording, such as: seller is not responsible for defects,
• and so on.

Case law on the ‘as is, where is’ provision

The extent to which the buyer's right and the seller's liability are limited depends greatly on the exact wording of the provision. The Arnhem-Leeuwarden Court of Appeal issued another ruling on this subject last February. It ruled that a seller cannot oppose every claim based on non-conformity can defend by invoking the ‘as is-where is’ clause (ECLI:NL:GHARL:2025:1127). In interpreting such a clause, it comes down to the meaning that the parties mutually could reasonably attribute to it under the circumstances and what they could reasonably expect from each other about it (the Halviltex formula). The Court:

“The ‘as is-where is’ clause does not extend to the extent that it also excludes a buyer's right to invoke non-conformity of the sold property, since an unambiguous incorrect factual statement was made on several occasions about an essential characteristic of the sold property, attributable to the seller, with relevant consequences for (the suitability for) the buyer's intended use of the purchased property, while the buyer did not know of that incorrectness and did not have to have any doubt on that point or should reasonably have made further inquiries into it. Seller's reliance on this provision therefore fails.”

How do judges deal with an ‘as is, where is’ provision

Thus, when interpreting the clause, one looks not only at the linguistic interpretation of the clause, but at all the concrete circumstances of the case. The standards of reasonableness and fairness also play an important role. Nevertheless, the linguistic interpretation of the clause is very important in many cases (ECLI:NL:PHR:2004:AO1427). It is only in commercial transactions between professional parties that linguistic or grammatical explanations are more likely to be considered (see, e.g. ECLI:NL:PHR:2007:AZ3178 and ECLI:NL:PHR:2007:BA4909).

Clause covers only physical defects

The North Netherlands District Court in 2023 (ECLI:NL:RBNNE:2023:52) held that the ‘as is, where is’ clause must be interpreted narrowly. Indeed, the buyer is entitled to invoke the clause only with respect to the physical characteristics of the property. This case involved the lack of consent of the VvE for the performed remodeling of the home. The buyer was not entitled to invoke the clause in this case.

Here's how to handle an ‘as is, where is’ determination

No unambiguous definition of the ‘as is, where is’ provision has been laid down in law. Thus, the scope of the provision must be considered on a case-by-case basis. It is also necessary to consider what the parties' intentions were when concluding the agreement. It is therefore extremely important to have the real estate you have in mind properly inspected. By the way, that also falls under your duty to investigate. Are you facing such a determination? If so, please contact on with our specialized real estate lawyers.