Section 10 Maintenance Duties and Repair

• Library: Real Estate Leasing and Landlord-Tenant Actions and Remedies 2011

The conventional commercial lease ordinarily provides that the landlord will maintain the exterior of the buildings and the tenant will maintain the interior and fixtures or equipment. This type of provision is often adequate, but in leases of larger properties, it will frequently prove to be inadequate. Ordinarily, the parties intend that day-to-day maintenance and minor repairs be made and paid for by the tenant and that repairs because of obsolescence or old age and in the nature of a replacement or a capital expenditure be paid for by the landlord. Some items, such as responsibility for making repairs to the roof or parking areas, may need to be specifically addressed. In addition, tenants are often required to make repairs made necessary by the negligence of the tenant or the tenant’s agents or invitees, regardless of whether the repairs are structural in nature.

The problem becomes very acute when the cost of making major replacements or repairs to such things as elevators, boilers, and large air-conditioning units, or the cost of repaving a parking lot, is considered. The problem becomes more acute if significant repairs need to be made near the end of the lease term. Tenants may be reluctant to spend the money required for these repairs or, in some cases, may not have the financial ability to pay for the repairs. Common solutions to the drafting problem include:

· a provision limiting the tenant’s expenditures for items such
as elevators, boilers, or air-conditioning maintenance to a particular sum in any one year and requiring that expenditures exceeding a certain amount be paid by the landlord;

a provision under which expenditures in excess of a specified amount are paid for by the landlord and charged back to the...