An undetected change to a sale and purchase agreement could call into question whether a contract exists at all, two of The Law Association’s leading property law experts have warned.
Joanna Pidgeon, Director of Pidgeon Judd and Convenor of The Law Association’s Documents and Precedents Committee, and Geoffrey Beresford, Partner at Beresford Law, presented the CPD webinar “Revised ASPRE: Your Questions Answered” on Tuesday 15 September. The session addressed issues that had emerged during the first six months of practice under the revised form.
The Agreement for Sale and Purchase of Real Estate 11th Edition 2022(4) was introduced on 21 April 2026, alongside separate agreements for sale by auction and by tender.
Clause 1.6: Non-alteration warranty
Both parties now warrant that they have not changed the ASPRE in any way that is not clear and visible. Acceptable changes are limited to strikethrough of published text or additions that leave the original text in place. The clause responds to the ease with which PDFs can now be altered to look like the original form.
Beresford said the warranty did not change the underlying legal position. “Even if you didn’t have the warranty, you would still have exactly the same issues as to whether there was a meeting of minds, whether there was a misrepresentation or not,” he said. Where changes were substantial enough, the question became whether a contract had been formed at all. The clause also carries potential copyright implications, given the ASPRE’s status as a protected form.
Pidgeon said the practical instruction to clients was clear. “You can just tell them: this should not be changed,” she said.
Clause 7.3(1): Chattels in reasonable working order
A question arose about what happens when a chattel is known to be defective at the time of signing. Pidgeon said the answer was unambiguous. “It has to be in reasonable working order on settlement as the fundamental obligation,” she said. “If you have a chattel which is not in reasonable working order, you are better to note that in the agreement or to delete it as a chattel.”
Vendors who know of a defect should amend the relevant warranty specifically or agree to sell the chattel on an as-is, where-is basis. Beresford noted that clients do not always volunteer the information and that asking directly before executing the agreement was essential. Where a property was being sold by trustees unfamiliar with its condition, an as-is, where-is approach was advisable.
The revised ASPRE expressly adds automatic garage door facilities to the chattels and systems that must be delivered in reasonable working order at settlement. Heat pumps have also been added to Schedule 2.
Clauses 7.3(5)(b) and (c): Restricted building work and consents
Beresford described this warranty as “potentially quite difficult for conveyancing lawyers,” noting that what constitutes restricted building work changes over time and is not always obvious on the face of the work. The vendor warrants that any restricted building work carried out after 13 March 2012 was done or supervised by a suitably qualified person, and that works were completed in compliance with any required permits or consents.
Both presenters pointed to a recent Building Performance determination (2024-054) as an example of the complexity involved. The determination found that wet-area membrane and tiled wall installations in existing dwellings could fall within Exemption 12 of the Building Act, meaning no consent was required in that particular case. Pidgeon cautioned that the determination was not a blanket exemption. “Every case is different,” she said.
Standard practice should be to ask clients directly whether any work has been done. Pidgeon noted that marketing materials could also surface inconsistencies, such as open-plan living areas in homes with no building consent history since original construction.
Clause 8.4: Vendor’s voting warranty for unit title properties
Once an ASPRE is signed and no conditions remain unfulfilled, the vendor holds the property as constructive trustee for the purchaser. Clause 8.4 extends this concept to body corporate voting. The vendor warrants that, since the date of the agreement, they have not voted on any matter that would alter the warranties given to the purchaser unless the purchaser has provided written consent.
Pidgeon said best practice was to provide the purchaser with notice of any EGM or AGM agenda and seek their directions on how to vote. Where the purchaser gave no guidance, the correct position was to abstain she said.
Beresford noted that, where a vendor’s vote would not change the outcome, causation arguments would limit any claim. But where the vendor’s vote was decisive, exposure was real. One practical solution raised in the session was giving the purchaser a proxy so they could attend and vote directly.
Clause 9.1(2): Finance condition
Beresford described the change to the finance condition as “one of the most consequential” in the revised ASPRE. Where a purchaser declines to satisfy a finance condition, they must now provide a reasonable explanation of the steps taken to arrange finance.
Failure to provide that explanation could amount to repudiation, leaving the purchaser at risk of losing their deposit and the vendor entitled to cancel. “If you’ve only contacted a mortgage broker the day before the condition’s due, that would obviously mean that the purchaser had breached the contract by not taking reasonable steps,” he said.
Pidgeon noted that unsophisticated purchasers, including those relying on KiwiSaver, were particularly at risk. The vendor does not get to vet the finance terms, only to receive a reasonable account of the steps taken.
Clause 10.3: Compensation claims
The former limit on the number of claims has been removed. The new clause 10.3(1) requires that a notice of claim be served as early as is reasonably practicable and quantified at the earliest practicable opportunity.
Pidgeon said last-minute claims created unnecessary pressure across settlement chains. “If you are aware of something, and you leave it until the day before settlement to raise it, that’s just unfair on everybody,” she said.
Where the other side refused to agree on an expert, Pidgeon advised proposing two or three names promptly and, if delays continued, applying to The Law Association’s president quickly to stop time leakage. The Property Disputes Committee was noted as a low-cost option, drawing on a panel of property lawyers and litigators.
Missed the CPD webinar? You can purchase access to the recording here.
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