Who Repairs What? Problems in Commercial Leases

Unlike residential leases, many commercial leases put a much greater responsibility on tenants for the maintenance, repair, and upkeep of the property than they do landlords. When it comes to the property that you are leasing, in many ways, it’s kind of like you own the place: you’ll have to fix it or take care of whatever goes wrong.

Who is Actually Responsible?

Of course, every lease is different so there is no one answer to who is exactly responsible for what in the typical commercial lease. But there are some similarities, and more importantly, things that both the landlord and the tenant should be wary of and look out for.

Be Clear in the Lease

One thing to remember is that when it comes to commercial leases, there is no default; that is, Florida doesn’t say that in the absence of something in a lease, either a landlord or a tenant has the obligation to repair a certain part of the property. That means that your lease needs to be clear as to who has the responsibility for doing what because there are no Florida laws to look at to see what the “default position” is.

Maintenance or Repair?

Even if your lease does detail who is responsible for what, that isn’t the end of the possible problems that can happen, because of ambiguity surrounding the commonly used terms “maintenance” and “repair.”

While in some cases it’s obvious which is which, it isn’t always so obvious, and some problems that can happen on commercial property may potentially be the cause of either a failure to repair or a failure to maintain, meaning that when things go wrong, there will be some investigation as to how they went wrong to see who is ultimately responsible for the repairs.

Using “Wear and Tear”

You’ll often see the terms “wear and tear” in a lease, sometimes preceded with the word “ordinary.”

The first rule here, in commercial leases, is to try not to use this phrase at all, at least not without further clarification in the lease itself because different courts have interpreted this phrase differently.

Most courts have said that it doesn’t mean that the property has to be returned in pristine, like-new, and immediately re-rentable condition, but that it does imply that the tenant does have some duty to get the property back into shape where it is ready to be re-leased. However, none of that gives any specific guidance to landlords or tenants, which is why these provisions lead to a lot of lawsuits.

Cost Limits

Many leases, even if they’re clear on who pays for what and what maintenance and repair is, won’t have any limit on cost. Tenants especially, may want to consider proposing a cost maximum, so that if they are stuck with paying for some maintenance or improvement on the rented premises, there is a maximum dollar amount they will have to pay-especially for larger exposure items like roofs.

Who Caused the Damage?

Many leases also don’t include any shift in obligation to maintain or repair, based on causes; that is, if someone other than the tenant causes something in the leased premises to break or need repair.

For example, the landlord may be working on the roof of the property, when vibration causes damage inside the leased premises. Who is responsible for that repair?

Tenants and landlords may want to specify not only who pays for what, but how those obligations may change, based on who is the cause of the damages needing repairs.

Questions about your commercial lease? Call our West Palm Beach commercial litigation attorneys at Pike & Lustig to help you.