Disclaimers – they won’t necessarily stop a claim31 May 2018 | General
There are a number of misconceptions out there about how disclaimers apply in practice. Yes, disclaimers sound good, but the courts have made it clear that a disclaimer as to the accuracy or otherwise of information or a representation will not be enough (by itself) to defeat a claim if you have provided incorrect information or engaged in misleading and deceptive conduct.
A disclaimer will be one of only a number of factors a court will take into account in determining any liability for misrepresentation or misleading and deceptive conduct. Those factors include the:
- nature of the transaction
- sophistication of the parties
- nature of the information/representation
- expertise of the person providing the information/representation
- extent of the disclaimer.
It is important to remember that no matter how well worded a disclaimer may be, you cannot rely on it in isolation as a bar to a potential claim. It will simply act as a mitigating factor.
To best protect your interests, you should:
- Always include a clear and comprehensive disclaimer in any material you might provide to a tenant, preferably in clear large font on the first page
- Take steps to ensure that any information disclosed to a prospective tenant is as accurate as possible as at the date it is provided
- Make sure you verify and are happy with any information provided by a third party
- Not be complacent simply because of the presence of a disclaimer
- Not include any material you are unsure about or which is outside of your knowledge/expertise.
If you need any assistance to draft a suitably worded disclaimer to best protect your interests, please do not hesitate to contact us.