Maintenance and Repairs During Your Commercial Tenancy

The landlord's lease will usually include a "Maintenance and Repair" clause that concerns your duties to care for your own rented space (or for the entire building, if you are the sole tenant). You'll want this clause to specify (as much as possible) what you are—and aren't—required to do to keep up the property and building, and what the landlord's duties are. The way the responsibilities are shared depends on common sense and your own negotiating power.

Tenant Maintenance and Repair Responsibilities

Your lease will probably require (at a minimum) that you keep the property neat and in good order, and repair nonstructural problems in your rented space that you've caused. Tenant responsibilities generally fall into two categories: what you cannot do, and what you must do.

What you can't do to commercial rental property

You may not intentionally destroy the landlord's property or act in an extremely careless way. For example, you can't rip out walls or fixtures without permission, and you can't allow garbage to pile up. Doing so constitutes committing "waste" or perpetrating a "nuisance," antique legal terms still used in commercial leases.

Another age-old legal principle common in commercial leases is "quiet enjoyment." This requires you to refrain from acting in a way that makes it impossible or overly difficult for your neighbors in the building to enjoy the benefit of their leases. For example, a restaurant whose exhaust fan spewed odorous smoke directly towards a set of adjacent office suites would doubtless hear from the office workers, who in turn would have a legitimate complaint with the landlord. It's ultimately up to the landlord to make sure that the tenants' activities don't collide unreasonably.

Even if your lease doesn't mention waste, nuisance, or quiet enjoyment, the law in all states will apply these prohibitions to tenants. You and the landlord are free to include them in the lease—by specifying what types of activities, for example, will constitute waste—but it's not necessary. What is important, however, is for you and the landlord to have a good general idea of your respective limits and responsibilities.

What you must do to rental property

Unless you and the landlord decide otherwise, you will be expected to keep nonstructural elements of your rented space in good shape. This means that cleaning and repairs to carpets, lighting, wall coverings, bathroom and kitchen fixtures, and so on will be your responsibility. Hopefully, your landlord's lease clause has enumerated these items and stopped there.

On the other hand, you won't normally be expected to work on structural aspects of the building or major building systems, such as the building shell, foundation, roof, electrical, heating, and ventilation systems. The reason is pretty clear—most property owners don't want tenants, even experienced ones, making decisions involving the building's walls, roof, and major systems.

Landlord Maintenance and Repair Responsibilities

Having read through the list of common tenant duties, you can probably figure out what's left to the landlord—simply put, all the housekeeping and repair chores that don't concern your use of your rented space, including maintenance on major structural aspects of the building and building systems. Be sure your lease spells out the landlord's responsibilities (many leases are completely silent on the subject).

Maintenance Issues to Watch For

You and the landlord are free to allocate the maintenance and repair responsibilities as you wish—if the landlord wants to put you in charge of the building's electrical switches and you agree, there's no law against it. Similarly, if you bargain for the landlord to provide you with janitorial and handyman services, you may have no obligation to maintain even your own quarters. But keep in mind that there are sometimes hidden costs and risks that may result from taking on additional maintenance responsibilities or turning over the upkeep of your space to the landlord. In particular, watch out for the following problems:

• Avoid getting in over your head. If you agree to take on repair and maintenance jobs that are normally handled by the landlord, you will probably get something in return—usually, a lower rent. But don't let the prospect of saving money cloud your judgment of your own abilities. It's a mistake to agree to maintenance responsibilities that you don't have the experience, time, or skills to manage.
• Limit your responsibilities for compliance with laws and building codes. Make sure that your maintenance responsibilities don't include building, fire, and safety code compliance responsibilities.
• Don't agree to maintenance responsibilities involving the landlord's parts of the building unless you have discussed insurance, during negotiations and with your broker. Be aware of your liability if an accident occurs in an area you agree to maintain. Your landlord's insurance policy may not cover you if an injured visitor slips on wet floor in the lobby you've agreed to maintain, and your own insurance may be insufficient.

This article was excerpted from Negotiate the Best Lease for Your Business by Janet Portman.