The Massachusetts Supreme Judicial Court issued an opinion on March 1, 2011 (Bishop v. TES Realty Trust, et. al (Lawyers Weekly No. 10-026-11)) which explicitly stated that the requirement that landlords protect their tenants from unsafe conditions after receiving notice of such conditions applies to commercial landlords regardless of the provisions contained in a lease stating otherwise.
The provisions of MGL c. 186, s. 19 provide in part that after receiving notice of an unsafe condition, not caused by the tenant, in a portion of the premises controlled by the tenant, its invitee, or subtenant, a “landlord or lessor of any real estate except an owner-occupied two or three-family dwelling” owes a duty to exercise reasonable care to remedy the unsafe condition.
TENANT COMPLAINTS & INJURY
In Bishop, a commercial tenant complained to their landlord about cracks and leaks in the roof and two skylights in the premises. Pursuant to the provisions of the written lease, the landlord had no duty to repair the roof or skylights. The tenant then sent the landlord a formal written notice complaining of these conditions and the landlord failed to correct these conditions. Following the written complaint, the tenant sustained a serious injury as a result of the neglected leak in the roof and skylight.
CASE BROUGHT TO SUPREME JUDICIAL COURT
The case was initially brought at the Superior Court, and that court ruled that pursuant to the provisions of the lease, the tenant was responsible for making all necessary repairs to premises, and that the landlord owed no duty under the common law or the lease to repair an unsafe condition. The judge also held that the provisions of G. L. c. 186, §19, did not apply to commercial leases.
On appeal, the Supreme Judicial Court found that the landlord did not have any duty to repair the roof under common law or pursuant to the written provisions of the lease; however, it held that the commercial landlord, after receiving notice of an unsafe condition, had a duty to exercise reasonable care to remedy the unsafe condition pursuant to the statutory provisions of G. L. c. 186, §19.
COMMERCIAL LANDLORDS BEWARE
In Massachusetts, commercial landlords should take very seriously any written notices of any unsafe conditions in their buildings, even within a space that is controlled by and is the responsibility of the tenant under their lease, despite what that lease might say to the contrary.
To avoid any attempt by the tenant to claim the landlord is negligent in unaddressed property repairs considered “unsafe conditions,” commercial landlords should consider including a clause in the lease that specifically refers to this statute and have the tenant acknowledge that they have in fact inspected the premises and have found no “unsafe conditions.”