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Repairs and Maintenance in a Commercial Real Estate Lease

By Howard C. Stross
October 13, 2014

A properly drafted commercial lease should address who is responsible for repairs and maintenance. If the commercial lease does not include this, Florida law in Chapter 83, Florida Statutes, tells us who is responsible.

If landlord has the duty to repair under a written lease, landlord fails to repair, and the lease is silent on what procedure to follow, tenant can withhold rent or vacate the leased space after first giving twenty days’ written notice to landlord to repair the problem and landlord does not do so. The law provides if landlord does not complete the repairs or maintenance in the allotted time, the parties may extend the time by written agreement or tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid liability for future rent or charges under the lease.

There is a distinction between a landlord’s or tenant’s obligation to maintain leased space compared to a requirement to repair the item in issue or replace it.  Be clear in the lease whose responsibility it is to maintain, repair, and replace.

How may landlord avoid tenant withholding rent or vacating the leased space? Provide in the lease the details the Landlord must follow regarding landlord’s responsibility for repairs, and cover whether tenant may continue to withhold rent. Another way to avoid misunderstandings, state in the lease the governing rule in Florida that landlord is not obligated for maintenance, repairs and replacements in a commercial lease. If the lease has an explicit agreement that landlord has the obligation, state whether that duty includes replacement of an item in issue. The landlord will want the lease to include that if the lease is silent on an issue, landlord is only required to repair, maintain and replace items explicitly spelled out in the lease.

Even if tenant has no obligation for repairs, tenant must return the leased space to landlord in the same condition as at the start of the lease, reasonable wear and tear excluded. An example of when a tenant may have to make repairs rests with state law. In Florida, tenant may not commit or permit waste to the leased space. Tenant may have to repair the roof, windows, doors or other openings at least to prevent intrusion of rain, wind and debris. The devil is in the details. Repairs and related issues are the source of many disputes between landlord and tenant, particularly over related issues not spelled out in the lease. If the area in issue is common space not controlled by tenant, such as hallways in a multi-tenant building, landlord will have the responsibility to maintain, repair and replace.

Finally, negotiating a commercial real estate lease will depend a great deal on the amount of space tenant will lease, whether the tenant is a large credit-worthy tenant, such as a publicly traded company, to what extent a landlord is providing an interior build-out allowance, and the market conditions near the space offered for lease.

This article is for general information only and is not intended to provide legal advice. Maintenance, repairs and replacement are only some of the important elements that must be considered and addressed in your commercial lease agreement. If you have questions or concerns about your commercial lease, please call us at 813-852-6500 for a free 30-minute consultation with a commercial real estate attorney.

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