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The Repair and Maintenance Gap
Upon careful review, many commercial leases have what can be called a “repair and maintenance gap.” This gap is created when the lease specifies certain repairs and maintenance for which each of the tenant and the landlord are responsible, but then is silent on others. If the repair and maintenance provisions are not considered, negotiated, and drafted thoughtfully, a gap can remain, creating the opportunity for the parties to be at odds over who has responsibility for a particular item of repair or maintenance, including whether replacements are included in those obligations.
Sometimes 'All Repairs' Does Not Really Mean 'All'
For example, while it is not uncommon in a long-term lease relationship for the parties to agree that the tenant will be responsible for most repairs to the premises, including structural repairs, absent express language in the lease to that effect, a landlord may be surprised to learn that it has retained such responsibility. This result was illustrated in a recent Missouri case, Whyzmuzis v. Plaza Shoe Store, Inc., Case. No. SD31766 (Mo. App. S.D. Sept. 17, 2012). In Whyzmuzis, the tenant had leased space in a shopping center for over 40 years pursuant to a series of smaller leases rather than one long-term lease, with the most recent lease being entered into in 2004 for a five-year term. The 2004 lease contained the following provision regarding maintenance and repair:
[Tenant] shall, at [its] own expense and at all times, maintain the premises in good and safe condition, including plate glass, electrical wiring, plumbing and heating installations and any other system or equipment upon the premises and shall surrender the same, at termination hereof, in as good condition as received, normal wear and tear excepted. [Tenant] shall be responsible for all repairs required, including the roof, exterior walls, structural foundations and all other items. This is a triple net lease: [Tenant] is responsible for all repairs and maintenance.
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