A landlord ordinarily has no duty to repair commercial premises, absent some statutory or contractual obligation to do so. In fact, if a lease requires the tenant to maintain and repair the premises, without specifying further, but is silent with respect to the landlord’s obligations, the tenant may be required to make any and all maintenance and repairs to the premises, both ordinary and extraordinary, including expensive structural repairs.
Typically, the parties in a commercial lease will agree to a repair and maintenance provision that places some obligations on both parties. These provisions usually require the tenant to make or pay for minor repairs and maintenance, or “ordinary” repairs, and require the landlord to make or pay for major capital expenses or “extraordinary” repairs to the property.
Problems arise when these provisions are not explicitly drafted.
For example, numerous disputes have arisen out of whether the landlord or tenant is responsible for certain expensive repairs, such as the repair and replacement of HVAC units, roofs, parking lot repair and maintenance, wiring, elevators, etc. In these situations, the lease provision at issue usually fails to sufficiently define a key term, such as “repair,” “maintenance,” “structural,” “extraordinary,” or “ordinary wear and tear.”
As a result, it is often left to a court to interpret the term and the parties’ intentions with respect to their repair and maintenance obligations. The parties then run the risk of the court interpreting the provision in a way possibly not intended by either or both of the parties.
In the context of repair provisions, this is a situation where it behooves the landlord to be as specific as possible. Landlords should clearly define and delineate the parties’ respective obligations regarding the maintenance and repair of the property, including not only the interior of the property, but any and all buildings, structures, and improvements on the property, as well.
Although it can be tedious during the negotiation process, when both parties are usually excited about the prospect of entering into a business relationship together, it is important for commercial landlords to remember that what may seem like “detail overkill” on the front end can become critically important if a problem ever arises under the lease. Being aware of the issues that are associated with these three types of provisions will give landlords the ability to negotiate the most favorable terms in their commercial leases, which is ultimately the goal.
Jill R. Johnson is a commercial litigator with Chamberlain Hrdlicka (Atlanta), who counsels clients with landlord/tenant and real estate disputes. She may be reached at jill.johnson@chamberlainlaw.com.
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