Require Tenant to Maintain Elements of Space that Aren't Clearly Interior or Exterior
Your lease may make a tenant responsible for doing all interior maintenance work at its space, while you're responsible for doing all exterior maintenance work. Although you may think that distinguishing between the interior and exterior of the tenant's space is a snap, think again. Certain elements of a tenant's space can have both interior and exterior characteristics. For example, windows and automatic glass sliding doors at entrances and exits may face both the interior of a tenant's space and the outside of the space and the center's common areas.
This ambiguity may mean that your lease, like many others we've seen, has a loophole: It may neither take into account that certain elements of a tenant's space could be classified as either interior or exterior, nor specify who's responsible for maintaining those elements. As a result, if a customer is injured because such an element was badly maintained, you and the tenant could end up in court battling over who was responsible for maintaining that element.
Were Glass Doors Exterior or Interior?
Consider what happened in a Florida case. A shopper exiting a department store in a center was hit by an automatic sliding glass door. The shopper sued the department store and the center over her injuries. The center then sued the department store, claiming that the department store alone should be held responsible for the accident because it was responsible for maintaining the doors. The department store had agreed in the lease to perform all interior maintenance, with the center handling everything else. The department store asked that the center's lawsuit be dismissed without a trial, claiming that the automatic sliding glass doors were clearly “exterior” and not “interior,” and thus weren't part of the department store's maintenance responsibilities.
A Florida appeals court ruled that a trial had to be held to decide the issue, because it was ambiguous whether the doors were exterior or interior. The doors faced the store's exterior and the center's common areas, for which the center would be responsible. But they also faced the store's interior, for which the department store would be responsible [C R Mall v. Sears, 1996].
Specify Maintenance Responsibility
To avoid ambiguities and protect your wallet, state in the lease that the tenant is responsible, at its own expense, for operating, maintaining, repairing, and replacing all windows, window frames, doors, and door frames on the interior and exterior of its space, advises Toronto attorney Harvey M. Haber. If there are any other elements that could be classified as both interior and exterior, mention them in the lease, too. This way, you don't have to specify whether a particular window or door is part of the interior or exterior of the tenant's space'the tenant is responsible for maintaining all of them. That should be the case even if you're responsible for all other exterior maintenance work.
To get this protection, Haber suggests that you add the following language to the lease where it says that the tenant is responsible for all interior maintenance work:
Model Lease Language
Notwithstanding the foregoing or anything in this Lease to the contrary, Tenant shall be responsible for operating, maintaining, repairing, and replacing all windows, window frames, doors, door frames, and [insert any other elements with both interior and exterior characteristics] on the interior and exterior of the Premises.
Harvey M. Haber, Q.C.: Partner, Goldman Sloan Nash & Haber LLP, 250 Dundas St. W., Ste. 603, Toronto, ON M5T 2Z5; (416) 597-3392; firstname.lastname@example.org.