Typical New York real estate contracts, for residential and commercial properties contain the all too familiar, "as is" clause. This clause essentially stands for the proposition that the purchaser takes the property as it currently stands in its present physical condition. Also, the "as is" clause in a contract can serve to bar a claim for breach of contract. (Board of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc., 73 AD3d 581 [1st Dept 2010])

Purchaser's attorneys, often in their contract negotiations include additional clauses (by way of a rider) to the standard contract of sale form aiming to extract additional representations from the seller, which will in turn protect the purchaser against any unexpected "surprises" as to the condition of the property. In the residential realm, for example, this could mean a representation that the property is being sold as is, but the seller represents no leaks in the past 12 months. In the commercial setting, where sometimes millions of dollars are at play, the purchaser is often afforded (contractually, of course) a due diligence period, in which they can examine the premises or conduct different tests to their satisfaction prior to purchasing. Furthermore, a typical real estate contract in New York will contain a no-reliance (or non-reliance) clause, which basically states that the purchaser has not relied on any statements (outside the contract) made by the seller as to the condition of the building. This no-reliance clause will usually serve to bar a plaintiff's fraud claim. However it has been established, in what is known as the "special facts doctrine" that the no-reliance clause bar a fraud claim only when facts relied upon, were "not matters peculiarly within the representing party's knowledge" and that the relying party has the means available to obtain the truth. Danann Realty Corp. v. Harris, 5 NY2d 317, 320-321 [1959]