Insurance—non-vitiation (non-invalidation) clauses

The following Property practice note provides comprehensive and up to date legal information covering:

  • Insurance—non-vitiation (non-invalidation) clauses
  • Vitiation of an insurance policy
  • Insured’s obligations
  • Disclosure
  • Non-vitiation clauses
  • Joint insurance
  • Single insured—landlord and tenant
  • Pitfalls

Insurance—non-vitiation (non-invalidation) clauses

Vitiation of an insurance policy

An insurance policy may be vitiated (or invalidated) if the insured:

  1. misrepresents or fails to disclose any material fact to the insurer before the insurance policy is issued, or

  2. fails to comply with any of the obligations imposed on it during the lifetime of the policy

The insured’s obligations are usually expressed in the form of warranties.

In the case of:

  1. 'deliberate or reckless' non-disclosure or misrepresentation, the policy may be void from the outset (‘ab initio’)

  2. breach of warranty, the policy is suspended (rather than entirely discharged) and resumes if/once the breach is remedied

Where a breach is deliberate or reckless, the insurer need not return any of the premiums paid.

A breach of a warranty must be related to the particular loss in question, ie the insurer is not able to avoid a claim where the insured's non-compliance with the term could not have increased the risk of 'loss which actually occurred in the circumstances in which it occurred'.

Insured’s obligations

Typical warranties by an insured include those relating to:

  1. proper maintenance of an insured property

  2. the implementation of requirements or recommendations which are issued from time to time by the insurer

  3. giving notice to the insurer of any circumstance (eg alteration to the insured property, or the business which is conducted from it) which increases the risk of destruction, damage or

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