england-and-wales business-lease
Are Landlord&#39;s exclusion clauses of &quot;any loss of life or loss, injury or damage to person or property&quot; too onerous on Tenant?
<p>I want to lease office space in England. I'm scared that Tenancy Agreement's Exclusion Clauses exclude too much! Aren't they too harsh on me? How's it fair for Landlord to exclude so much, and make me bear burden of &quot;any loss of life or loss, injury or damage to person or property or for any disruption or inconvenience caused to or sustained by the Tenant&quot;?</p>
<p>I read <a href="https://gowlingwlg.com/en/insights-resources/articles/2018/exclusion-clauses-and-the-reasonableness-test/" rel="nofollow noreferrer">this Gowling WLG website dated 02 July 2018 on exclusion clauses and the reasonableness test under UCTA 1977</a>. Indubitably I and Landlord don't have equal bargaining power! Landlord's more wealthier and powerful than me!</p>
<p>For example, Landlord and its agents are responsible for operating &quot;lifts escalators and air conditioning system … &quot; (see 7.1a) and hiring security &quot;watchman&quot; (see 7.1e). Thus shouldn't they liable &quot;In respect of any loss of life or loss, injury or damage …&quot; (see 7.1a and 7.1e)?</p>
<blockquote>
<h1>SECTION VII. EXCLUSIONS.</h1>
<p>7.1 The Landlord and its agents shall not in any circumstances be liable to
the Tenant, occupier or any other person whomsoever :-</p>
<h3>Common Services and Facilities</h3>
<p>(a) In respect of any loss of life or loss, injury or damage to person or
property or for any disruption or inconvenience caused to or sustained
by the Tenant, occupier or any such other person caused by or through
or in any way owing to any defect in or failure or breakdown or
suspension of the lifts escalators and air-conditioning system (if
any) condenser water supply system (if any) electric power and water
supplies, or any other common services and facilities provided in the
said building for any reason whatsoever including negligent or
wrongful acts or omissions by independent contractors; or</p>
<h3>Electricity/Gas/Water Supply</h3>
<p>(b) In respect of any loss of life or loss, injury or damage to person or
property or for any disruption or inconvenience caused to or sustained
by the Tenant, occupier or any such other person caused by or through
or in any way owing to any failure, malfunction, explosion or
suspension of the electricity or power or gas or water supply or other
utility to the said building or the said premises for any reason
whatsoever; or</p>
<h3>Fire and Overflow of Water, Vermin</h3>
<p>(c) In respect of any loss of life or loss, injury or damage to person or
property or for any disruption or inconvenience caused to or sustained
by the Tenant, occupier or any such other person caused by or through
or in any way owing to the escape or spread of fire, smoke or fumes or
any other substance or thing or overflow or leakage of water or
vibrations from anywhere within the said building or the influx of
rain water or sea water into the said building or the said premises or
typhoon, landslide, subsidence of the ground or the flooding or the
activity of termites, roaches, mice, rats or other pests or vermin in
the said building or the act neglect default or omission of the
tenants and occupiers of neighbouring premises or the defective or
damaged condition of the said premises or the said building or the
furnishings, fixtures and fittings therein or the dropping or falling
of any article whatsoever from neighbouring premises; or</p>
<h3>Non-enforcement</h3>
<p>(d) In respect of any loss or damage howsoever caused by or through
any non-enforcement of the provisions of the Deed, if any, in respect
of the said building and such general rules, car park rules and club
rules as may from time to time be made in accordance with the
provisions of the Deed, if any, or non-observance thereof by any third
party; or</p>
<h3>Security</h3>
<p>(e) For the security or safekeeping of the said premises or the said
building or any persons or contents therein and in particular but
without prejudice to the generality of the foregoing the provision by
the Landlord and/or its agents of any watchman and caretaker or any
mechanical or electrical alarm systems (if any) of whatever nature
shall not create any obligation on the part of the Landlord as to the
security of the said premises or any contents therein and the
responsibility for the same shall at all times rest with the Tenant;
or</p>
<h3>Vehicles</h3>
<p>(f) For the security or supervision of or for any damage to or loss of
vehicles or accessories or injury to persons or any damage resulting
therefrom.</p>
<p>And the Tenant shall indemnify and keep the Landlord fully
indemnified against all claims and demands whatsoever made upon the
Landlord by any servant agent employee contractor or licensee of the
Tenant or any other person claiming through or under the Tenant as a
result of any such loss or injury or damage aforesaid nor shall the
rent and other charges hereinbefore mentioned or any part thereof
abate or cease to be payable on account of the happening of any of the
foregoing.</p>
<h3>Exemptions Extend to Landlord's Agent  and Manager</h3>
<p>7.2 The Tenant hereby acknowledges that the exemptions contained in this
Section also extend to the Landlord's agent(s) and the manager of the
said building; or</p>
<h3>No Duty for Landlord to Insure</h3>
<p>7.3 Nothing in this Section shall be construed as imposing on the Landlord
or the manager of the said building any duty to insure against any of
the above liabilities; or [...]</p>
</blockquote>

<p>As someone who acts for both landlords and tenants I would say that I have never seen exclusions for personal injury or death in a commercial lease. I would recommend that you have the whole lease reviewed by a solicitor dealing in commercial property, particularly as, as has been stated in another reply, exclusion of liability for personal injury or death is prohibited by UCTA. This would suggest there may be other provisions  which, if not prohibited, are unreasonable and you should be aware of the commitments you are taking on prior to signing</p>
<p>This pure speculation, but the fact that those clauses would not be in a standard lease precedent does make me wonder if the landlord has done a DIY job and produced a lease from the internet suitable for another jurisdiction.</p>

<h2>This is all pretty normal for a commercial lease</h2>
<p>In a commercial lease, the tenant is responsible for damage caused by the property to any third party unless caused by structural failure of the property. Your public liability insurance should cover all this.</p>

<p>You might want to try to determine if any of those waivers run contrary to public policy. Just because someone agrees to something in a contract does not mean what they've agreed to supersedes already established law. Oftentimes with waivers, there's a reason that they are there..so you agree in writing to waive your right to something.</p>
<p>Just because the property owner gets you to sign something doesn't mean it is or isn't legal. A contract that seeks to violate a law won't hold up in court, usually to the extent that there is a discrepancy. Common law recognizes that a contractual agreement that runs contrary to public policy is void, or at least voidable.</p>
<p>Whether or not that is applicable to you, I don't know but it's something to look into if you think that the landlord is trying to get you to sign away your rights.</p>

<p>Are they too onerous? That is for a court to decide. We cannot advise you on that, and even if we could, you're still free to negotiate or decline the contract; you are not forced to sign it.</p>
<p>It is possible that, given your unequal bargaining positions, a court <em>may</em> hold that the relevant clauses are too onerous under the Unfair Contract Terms Act 1977 but it would be highly fact specific.</p>
<p>If you are not comfortable with the proposed terms, try negotiating them or simply walk away.</p>

<p>&quot;Any reason whatsoever&quot; in this case, is very likely an overstatement.</p>
<p>For example, notwithstanding the terms of the lease, the landlord (or the landlord's property manager) would almost certainly not be exonerated from liability under this lease for intentionally placing deadly traps in the building, without informing the tenant of that fact, and then activating them with an intent to cause physical harm to someone that in fact causes physical harm to someone.</p>
<p>Similarly, despite the vermin clause, if the landlord intentionally dumped dozens of high poisonous vipers in the men's toilet shortly after the tenant moved in and someone was killed by a snake bite, the landlord would almost certainly not be protected by the vermin clause in this lease.</p>
<p>While there are many circumstances in which liability for negligence can either be waived, or delegated to someone else (e.g. the elevator maintenance guy), there are virtually no circumstances in which liability for one's own intentional tortious acts can be contractually waived.</p>
<p>There may be other circumstances in which &quot;any reason whatsoever&quot; doesn't really mean what it purports to mean, but this would be the most obvious one.</p>
<p>There is also legal risk in drafting a contract this way.</p>
<p>Suppose that your solicitor drafts the lease in a manner that excludes liability for some acts for which liability cannot be waived, without trying to distinguish between liability that can be waived and liability that cannot be waived, under the law, as this lease does. This means that if an incident comes up, the landlord will have to argue that the over broad waiver is valid since this particular situation is one where liability could have been waived, rather than having the judge invalidate the crude contract term in its entirety as contrary to public policy. The landlord might win that court battle, but a better solicitor would have drafted the waiver in the lease in a manner that would have avoided entirely the need to litigate that issue by only having the tenant waive liability in circumstances where it was actually permissible under the law to do so.</p>
