Landlord unfair contract terms?

[ukbusinessowne]

Hi,

I had nightmares finding an office to rent. I found one and have a licence, so it's not an official lease. One contract term they have is

The COMPANY and the LICENSEE hereby agree that the COMPANY shall have no liability whatsoever to the LICENSEE for, and that the LICENSEE shall indemnify the COMPANY against all actions, claims, demands, costs, losses or expenses, which may be brought, made against, sustained or incurred by the COMPANY howsoever arising directly or indirectly out of, or in connection with this Licence in respect of any of the following matters: - a). death or personal injury to any person visiting or working at the CENTRE, including loss or damage to any common ways, doors, walls, or partitions permitting entrance or exit to the LICENSEE.

Now, the issue I have, is that I have spoke to my insurers and they don't cover the stairs.

Does this make the above an unfair contract term and basically unenforceable? Since it's their building and I can't actually insure the stairs. I was looking at getting a part time staff member and am concerned re above.

Thanks

 

[Newchodge]

Hi,

I had nightmares finding an office to rent. I found one and have a licence, so it's not an official lease. One contract term they have is

The COMPANY and the LICENSEE hereby agree that the COMPANY shall have no liability whatsoever to the LICENSEE for, and that the LICENSEE shall indemnify the COMPANY against all actions, claims, demands, costs, losses or expenses, which may be brought, made against, sustained or incurred by the COMPANY howsoever arising directly or indirectly out of, or in connection with this Licence in respect of any of the following matters: - a). death or personal injury to any person visiting or working at the CENTRE, including loss or damage to any common ways, doors, walls, or partitions permitting entrance or exit to the LICENSEE.

Now, the issue I have, is that I have spoke to my insurers and they don't cover the stairs.

Does this make the above an unfair contract term and basically unenforceable? Since it's their building and I can't actually insure the stairs. I was looking at getting a part time staff member and am concerned re above.

Thanks

What did your solicitor say about it all before you accepted the licence4?

 

[ukbusinessowne]

What did your solicitor say about it all before you accepted the licence4?

We are a very small business. I don't have a solicitor.

 

[Newchodge]

We are a very small business. I don't have a solicitor.

It looks as if you may need to isntruct one over this. The wording after CENTRE makes absolutely no sense to me whatsoever.

 

[ukbusinessowne]

It's not worth my while instructing a solicitor, it would be cheaper to move offices. It's an easy 1 month notice place. I used to be married to a solicitor and understand there is something like unfair contract terms that aren't enforceable, and if that is the case I won't lose sleep over it. Hopefully someone will be along who has come across something like this.

 

[HFE Signs]

I agree with @ukbusinessowne if you can't agree on terms then you walk

 

[IanSuth]

it looks like something is missing or there is a strange cut and paste - like cyndey says in one breath is basically saying they are not liable in any way shape or form if you or staff or visitors get injured or killed AT the centre - then suddenly it is talking about damage TO their premises without a joining phrase.

I suspect they have accidentally deleted a bit saying you are liable for damage to common areas howsoever caused.

But is does allow you to say "I have realised your licence terms appear to be malformed/mangled can we redo them to make sense and whilst we do, I can't get cover for the stairs so can you omit them from the rewrite"

Can't harm to ask and it is you putting them on notice their licence makes no grammatical/legal sense so needs rewriting anyway to be enforceable so they may be happy to come to a mutually agreed end point

 

[ukbusinessowne]

it looks like something is missing or there is a strange cut and paste - like cyndey says in one breath is basically saying they are not liable in any way shape or form if you or staff or visitors get injured or killed AT the centre - then suddenly it is talking about damage TO their premises without a joining phrase.

I suspect they have accidentally deleted a bit saying you are liable for damage to common areas howsoever caused.

But is does allow you to say "I have realised your licence terms appear to be malformed/mangled can we redo them to make sense and whilst we do, I can't get cover for the stairs so can you omit them from the rewrite"

Can't harm to ask and it is you putting them on notice their licence makes no grammatical/legal sense so needs rewriting anyway to be enforceable so they may be happy to come to a mutually agreed end point

Yes that may be worth a try. I was thinking it may be legally unenforceable anyhow though, so if so, it could be rather a non issue anyway.

 

[WaveJumper]

I agree with the above its almost like they cut and pasted from someone else's, I certainly would not have signed it. Is the office in a "block" do you have to contribute to any form of service charge which may include insurance for the building ?

 

[Newchodge]

it looks like something is missing or there is a strange cut and paste - like cyndey says in one breath is basically saying they are not liable in any way shape or form if you or staff or visitors get injured or killed AT the centre - then suddenly it is talking about damage TO their premises without a joining phrase.

I suspect they have accidentally deleted a bit saying you are liable for damage to common areas howsoever caused.

But is does allow you to say "I have realised your licence terms appear to be malformed/mangled can we redo them to make sense and whilst we do, I can't get cover for the stairs so can you omit them from the rewrite"

Can't harm to ask and it is you putting them on notice their licence makes no grammatical/legal sense so needs rewriting anyway to be enforceable so they may be happy to come to a mutually agreed end point

Or you risk NOT telling them and then find the terms are unenforceable as gobbledygook..

 

[The Resolver]

For the record, s 2(1) of the Unfair Contract Terms Act 1977 states:-

"“A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.”

You could not say anything and rely on the above, but better to raise it now in order to ensure he then takes out insurance cover,

 

[japancool]

Otherwise, the landlord could walk in, shoot someone, and you'd be liable!

 

[Frank the Insurance guy]

The COMPANY and the LICENSEE hereby agree that the COMPANY shall have no liability whatsoever to the LICENSEE for, and that the LICENSEE shall indemnify the COMPANY against all actions, claims, demands, costs, losses or expenses, which may be brought, made against, sustained or incurred by the COMPANY howsoever arising directly or indirectly out of, or in connection with this Licence in respect of any of the following matters: - a). death or personal injury to any person visiting or working at the CENTRE, including loss or damage to any common ways, doors, walls, or partitions permitting entrance or exit to the LICENSEE.

I have hi-lighted and underlined the relevant part from an insurance point of view.

They are saying they will not be liable whatsoever, and even if if they are, that you as the Licencee will "indemnify" them - ie. you will take on their liability.

Your insurance will not cover this. Your insurer will cover and protect you, where you have been negligent. Where the landlord has caused the injury or loss, your insurers will not protect or indemnify them!

"“A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.”

Interesting point. Not sure how this holds where the landlord is legally liable, but the contract states the licencee must indemnify the landlord!

Otherwise, the landlord could walk in, shoot someone, and you'd be liable!

This is an extreme, but good example! You have done nothing wrong, but under the contract you must indemnify the landlord (ie. although they are liable, you have agreed to indemnify them!).

Another example would be where your employee is injured whilst working at the premises. They are electrocuted and following investigation it turns out that he electrics are in disrepair and the landlord is responsible for not making the electrics safe - Your landlord is responsible, therefore why would you want to indemnify them!

I would suggest agreeing to amend/remove the clause. If the landlord does not agree, then move out.

Its not worth waiting for something to happen and then try to solve it after the event. Get out now!

 

[The Resolver]

Interesting point. Not sure how this holds where the landlord is legally liable, but the contract states the licencee must indemnify the landlord!

That doesn't breach the law on Unfair Contract Terms in that it doesn't seek to deny the potential for liablity to third parties of the landlord , simply adds an indemnity by the tenant of whatever liability there is.