Real Estate Tip of the Week: Not so far as we are REALLY aware...? - DAC Beachcroft

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Real Estate Tip of the Week: Not so far as we are REALLY aware...?

Published 30 January 2017

There is no general obligation on a seller/landlord of a commercial premises to answer pre-contract enquires (with limited exceptions), but convention dictates that replies in the industry standard form are usually provided.

It is not uncommon for replies to contain numerous references to “not so far as we are aware”, but, as a seller/landlord, you must be careful in adopting this approach to responding to an enquiry.

Case law has established that the individual providing replies to enquiries may be held liable for misrepresentation if they provide inaccurate or misleading information, even unknowingly, because they did not carry out reasonable investigations to verify their accuracy. Such investigations would include asking questions of, for example, all relevant personnel within the seller/landlord company and reviewing all relevant files and records. There is an obligation on the seller/landlord to carry out all investigations that are objectively reasonable to ensure that the replies are true and accurate.

This can sometimes be difficult for several reasons: the seller/landlord may have owned the premises for a long time and records may have been destroyed; or personnel, who had the relevant knowledge about the premises, may no longer be with the company. Where a seller/landlord is in this position, or does not have all the information to hand, it should expressly qualify its replies to the pre-contract enquiries to make this clear.

It is not necessarily sufficient to do so with a phrase such as "not so far as the seller is aware", as this may be taken as a representation that the seller/landlord has taken reasonable steps to identify the correct reply. As your legal advisors, we can help to formulate a suitable disclosure to ensure that any risk is minimised.

Sellers/landlords should also remember to disclose, without delay, any events which would subsequently alter the replies given before land contracts are entered into, because replies are treated as continuing representations up to the point a contract is entered into.


Liz Donnelly

Liz Donnelly


+44 (0)161 934 3243

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