Liability of Commercial Landlords and owners for Unsafe Conditions

In a recent decision, the Massachusetts Supreme Judicial Court held that a commercial landlord has a statutory duty to correct an unsafe condition as long as the tenant provided written notice of the condition and the tenant did not cause the condition. A commercial landlord has that duty even if the lease provides that the tenant is responsible for repairs and replacement.

The statutory duty arises from General Laws Chapter 186, Section 19. The duty may not be waived in any lease or rental agreement; any such waiver “shall be void and unenforceable.”

Based on this new case, it is important that owners, landlords and property managers respond to written notices provided under the statute even if the tenant is responsible for repairs under the lease. It is also important that the lease provides that the landlord can recoup costs if it is called upon to make repairs.

The new case is Bishop v. TES Realty Trust, wherein the tenant provided the landlord with written notice (by certified mail, return receipt requested, per the statute) complaining about a leaking roof and skylights. The landlord repaired the roof but not the skylights. The tenant claimed that plaster fell from the roof by the skylight into her eye, causing her to fall and suffer injuries. In its defense, the landlord claimed that the statute did not apply to commercial landlords and that the lease obligated the tenant to make repairs. Unfortunately for commercial owners and landlords, the SJC disagreed.

In addition to the “statutory duty” at issue in Bishop, the SJC identified two instances under “common law” where a commercial landlord is liable for injuries arising from unsafe conditions on the landlord’s property: (1) the landlord contracted to make repairs and made them negligently, and (2) the defect that caused the injury was in a common area or other area appurtenant to the leased area over which the landlord had some control.

The Court had an interesting comment on lease provisions that impose a duty to repair on the tenant: “The statutory duty imposed by §19 applies only where the required notice of an unsafe condition has been provided to the landlord. Where the lease imposes on the tenant a duty to repair, the tenant is unlikely to provide such notice, and is more likely to repair the condition herself. Where a tenant with such a duty under the lease gives the required notice and the landlord remedies the unsafe condition, the landlord may bill the tenant for the cost of repair or, as expressly provided under the lease in the instant case, charge the cost of repair as additional rent. And if the application of §19 to commercial landlords does, in practice, devour the common-law rule or allow commercial tenants to shirk their responsibilities under a lease, commercial landlords may petition the Legislature to limit §19 to residential landlords, as the Legislature has done in many other statutes.”

Accordingly, owners, landlords and property managers should consider reviewing their leases to confirm that the provisions concerning tenant’s duty to repair, waiver of landlord obligations, and landlord’s ability to bill a tenant for the cost of repair or charge a repair cost as additional rent, comply with the holding in the Bishop case. Landlords and managers should also be prepared to evaluate written notices sent by tenants pursuant to G.L. c. 186, §19, to determine if an unsafe condition should be corrected by the landlord, and make those corrections if they are required by statute, even if the lease requires the tenant to make repairs.

Please contact me if you or a colleague has a question on the Bishop case or this e-mail.