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Enough Is Enough! The Scope of the 'Perpetual' Right to Cure

By A. McCampbell Gibson and Wade W. Pearson
November 29, 2004

Is the landlord's right to cure a defect in the premises a perpetual one? The answer depends on where you are, what your lease says, and whether you have documented complaints and repairs adequately.

Commercial lease agreements often contain provisions imposing a duty to keep the premises in repair. This duty is typically mitigated by an opportunity to cure any default by making the necessary repairs on the property after receiving notice of the problem. The right to cure presents challenges for both landlords and tenants. Occasionally, the party with the duty to repair may have an incentive to do as little as possible to correct the problem, comforted by the knowledge that written notice must be given before a default occurs. Both legal issues and more practical business concerns increase, however, when the same or similar problem arises repeatedly throughout the lease term even if “repairs” have been made. A recurring, though minor, repair issue may serve as an excuse for the non-defaulting party to terminate the lease prematurely. The landlord will choose this route when markets are strong and it can lease the space for a higher rent. Conversely, a tenant may resort to this tactic when markets are weak ' either to negotiate a better rate at the existing space or leave to find accommodations with more favorable terms.

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