By Alexander Padis
3/14/11

In its most recent decision regarding the obligations of landlords, titled Bishop v. TES Realty Trust, the Massachusetts Supreme Judicial Court has again demonstrated its determination to increase the potential liability of property owners in Massachusetts.

This past summer, the court decided to change the long-standing rule that a property owner could not be liable to someone who slips and falls on a natural accumulation of snow or ice with no apparent regard for the impact that the burden to remove such accumulations will have upon those physically or financially unable to meet that burden. In Bishop, the court has decided to change the long-standing law that the owner of commercial property can contractually protect himself from liability to a tenant arising out of a defect in the rented or leased property.

In Bishop, in a decision written by Justice Ralph Gants, who also wrote the snow-and-ice decision, the SJC held that a landlord could be liable to a tenant who was injured as the result of a defective condition in the leased premises provided that the tenant previously provided the landlord with written notice of the defect under Chapter 186, Section 19. Before Bishop, no court had applied Section 19 to a commercial, rather than a residential, tenancy. The court held that Section 19 applies even though the tenant had signed a lease that obliged the tenant to maintain the premises in a safe condition and, under common law, a commercial landlord has no duty to repair leased premises.

Gants was clearly mindful of the incongruity of interpreting a statute to impose liability under circumstances in which no such liability would be imposed by common law or under the terms of a negotiated lease agreement. Nevertheless, he wrote that “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.” In other words, if owners of commercial property disapprove of the court’s extension of the law, they can take it up with the Legislature.

As the result of this decision, owners of commercial property may no longer rely upon the language of their leases that impose the duty to maintain the property upon tenants, including so-called “triple net” leases. If a tenant provides written notice of a defect under Section 19, the owner must act promptly to repair that defect and charge the cost back to the tenant, or risk being held liable to anyone who might be injured as the result of the defect. The landlord may also take legal action for the tenant’s breach of the obligation under the lease to maintain the premises.

Perhaps, as Gants suggested, the Legislature will revise Section 19 to restore the protection previously afforded to owners. Until then, landlords must beware. And that’s your Attorney’s Advice.