We have previously published articles on the importance of replies to enquiries (“Commercial property standard enquiries replies” and “Be Sure to Give Accurate Replies to Enquiries)”
Following the recent case of First Tower Trustees Ltd and another v CDS (Superstores International) Ltd  EXCH B6 (Ch) the importance of ensuring that the replies are correct throughout the transaction is confirmed.
This recent case demonstrated the duty on the seller/landlord for ensuring that their replies are not only correct, but are in continuation of the matter.
The landlord initially stated in their replies to enquiries (regarding notices relating to environmental problems and/or whether any breaches occurred) that “the tenant must satisfy itself”.
As part of the CPSE’s it states that prior to contract or completion the seller/landlord would notify the buyer on becoming aware that any reply was incorrect. The Landlord in this case failed to update their replies to the asbestos enquiries following receiving an update from their asbestos specialist revealing the presence of asbestos. As part of the Agreement to Lease the tenants were obligated to carry out works on the property which would trigger the completion of the Lease, it was then that they became aware that the property was infected by asbestos. The works had to stop and the tenants had to find alternative premises whilst remedial works were carried out for its removal.
Despite the landlord placing the onus on the tenant to satisfy themselves the court held that this was a misrepresentation and that the landlord cannot conceal themselves behind such a response. The tenant in this case successfully claimed damages for the alternative premises and the remedial works carried out.
The Commercial Property Standard Enquiries are a continuing factor of the transaction and as shown above it is important that at any stage, if you are aware of any changes or the information previously provided is no longer correct, for this to be updated and the other side to be informed accordingly.
The process is long and time consuming to provide replies along with supporting evidence where necessary, if you are unsure of the reply then please ask for assistance and we can help you find the appropriate reply.
Call our Commercial Property Team on 0800 088 6004 for assistance