Common-Area Risk Abatement: Who is Responsible?

Most commercial leases will designate who — landlord or tenant — must maintain and secure common areas. When there are many tenants, the landlord logically has more overall control of the common areas, so the landlord generally bears ultimate responsibility for ensuring these spaces are safe and secure from hazards. But this is by no means a universal certainty. The lease may allocate some of the potential liability to the tenant, and the law of the jurisdiction in which the property lies also may weigh in with its own considerations.

A recent New Jersey case, Lane v. Whole Food, 2018 N.J. Super. Unpub. LEXIS 1625 N.J. App. Div. (July 10, 2018), concerning a mishap at a Whole Foods market, is one of the latest to tackle the issue. It shows how courts can disagree about when a tenant has taken matters into its own hands in such a way that it crosses the line from innocent to responsible party.

Parking Rules

Defendant Whole Foods Market Group, Inc., leased the grocery store premises in question from landlord Clark Commons, LLC. Whole Foods, like most business establishments desiring to keep nearby parking spaces open for the use of customers, instructed its employees to park their cars in a distant area of the parking lot. This area, while further from the store than most of the parking spaces, was next to a bank with security cameras and was still part of the parking facility normally used by the public when patronizing Whole Foods and the other business establishments in the 36-unit commercial property.

Contractual Allocation of Security Responsibilities

The lease between Whole Foods and Clark Commons designates the lessor as the party responsible for providing maintenance and security in the shopping center's parking lot. Specifically, the lease defines the "common area" of the property to include "the vehicle parking lot and other areas of the [shopping center] generally available for the use of all tenants and occupants in the [shopping center], including, without limitation, any common roadways, service areas, driveways, areas of ingress and egress, sidewalks and other pedestrian ways." It further states, under the heading "Landlord's Obligations," that the lessor "at its sole cost and expense … shall be responsible for installing, maintaining, repairing and keeping the Common Area in a neat, clean, safe, good, and orderly condition and repair according to the highest reasonable standard for first-class shopping centers in the metropolitan area where the [shopping center is] located" and that "to the extent that Landlord reasonably determines appropriate, Landlord shall provide security guards for the Common Area."