Consider whether there should be an ‘entire agreement’ clause in a lease. If there is, then it will normally exclude liability for any pre-contract misrepresentation (other than fraudulent misrepresentation). Certainly, T should be fully aware of the implications of agreeing to such an ‘entire agreement’ provision.

This is well illustrated by a recent case where T took on a lease of a motorway service station, relying largely on the visitor predictions of L (in fact, the number of visitors was only about 10% of those predicted). However, T’s problem was that the lease contained an entire agreement clause which excluded any liability for representations made (other than those made fraudulently, or as part of formal replies to enquiries before contract). In the court’s view, the agreement satisfied the ‘reasonableness’ test under UCTA 1977, since T was advised by solicitors, and the agreement did allow reliance on replies to enquiries raised by solicitors. In these circumstances, T would only be able to recover if it could show that the representations were made (a) fraudulently, which was not the case, or (b) in the pre-contract enquiries.

The advice to a prospective T must be to be very wary of agreeing to such a provision, although if it has to be agreed then ensure that replies to pre-contract enquiries are comprehensive and unequivocal. FoodCo UK v Henry Boot [2010] EWHC 358 (Ch).