Repair duties for commercial tenants

Rent it Right

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Add Comment Add Comment | Comments: 0 | Posted Jul. 28, 2011

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Rent it Right

Janet Portman
Inman News™

Q: I rent a small retail space in a large building. The sash windows are old and funky, and it's very difficult to raise them. I told the landlord several times over a period of weeks, but he never did anything about them. Last week, as I attempted to raise a window, the cord broke and the window slammed down on my arm, breaking it. The landlord claims that I'm responsible for repairs within my rented space, so he's not liable. Can this be so? --Marek P.

A: If this accident occurred in a residential rental, the answer would be simple enough, at least in the states that require landlords to maintain fit and habitable housing (all but Arkansas). Under those state laws, landlords must repair dangerous conditions when they become aware of them, and within a reasonable time.

No statute or court decision will give you precise explanations of what adds up to "dangerous conditions" or "reasonable time." Instead, these requirements are applied on a case-by-case basis, by judges and juries who use their collective good sense and experience to determine whether the situation was dangerous and whether the landlord's response time was reasonable.

Given the facts that you describe, a residential tenant would probably have a good argument that these windows posed a danger of just the sort of injury that happened. While the landlord need not have responded immediately (he could have arranged for their replacement and asked the tenant to refrain from opening the windows, for example), he did need to take action.

But when you're dealing with a commercial rental, the analysis may change a bit. First, commercial landlords and tenants have much more leeway to allocate responsibilities for legal requirements between them than do their residential counterparts. For example, a commercial tenant renting an entire building might agree, in the lease, to be responsible for not only the proper upkeep of his own rented space, but structural repairs as well. As long as the lease is clear on the matter, there's usually nothing legally wrong with such an agreement.

For practical reasons, however, it wouldn't make sense to make business tenants in a multitenant property responsible for structural repairs. Doing so would raise the possibility of several people undertaking repairs at once; at the opposite extreme, it could lead to no one taking care of a problem, because everyone assumed someone else would deal with it. Aside from logistics, few landlords are willing to turn over the upkeep of their building to someone who may not know what he's doing and (as a non-owner) has little incentive to do a quality job.

In your case, let's assume that your lease doesn't make tenants responsible for structural repairs. Assuming you are obligated to repair only your rented space, do the windows come within that duty? The tenant's duty to repair his rented space normally extends to carpet, flooring and other items that are not a major part of the structure. If you were to remove and replace windows, you might end up with a very upset landlord, who could have his own notions of what's appropriate for his building, in terms of both style and quality.

On the other hand, you might encounter a judge who concluded that fixing sash windows (but not replacing them) is within the scope of repairs that you agreed to when you signed your lease.

But if repairing or replacing the windows isn't within your lease-given duties, is there anything else to consider? You might argue that the window posed a dangerous condition that made the rental unfit; and that the "warranty of habitability" applies to commercial as well as residential rentals in your state. You'll need to do a little legal research to find out whether that powerful rule applies to business rentals.

Surprisingly, that question came up for the first time recently in a Massachusetts case. The court decided that the principle did apply to commercial rentals, and reversed the trial judge who had initially tossed the case. The court reasoned that the Legislature could have excluded commercial rentals from the scope of the warranty had they wanted to. Given the broad language of the statute (applying the rule "to all rentals"), one had to conclude that the Legislature intended the rule to be broad.

Q: My husband and I bought a bungalow that will be rented to our daughter and her family. They have had a rough time recently, so we will not charge much rent, and do not want to profit from this situation. Our daughter says that if they pay the real estate taxes, they will be able deduct them on their income taxes. But the property is in our names -- is this correct? --Lydia and Warren

A: Kudos to you for helping your family make it through a tough patch. Charging below-market rent will surely help them out, but your daughter's suggestion that they can get a deduction if they pay the property taxes won't work.

The IRS has a basic Web page that explains the various kinds of deductible taxes. After listing the types of taxes that qualify, the article's first sentence explains that a person can claim a tax deduction only when the tax is imposed on that person: "To be deductible, the tax must be imposed on you and must have been paid during your tax year (emphasis added)."

When it comes to property taxes, the tax is imposed on you, the owner. The IRS really doesn't care who pays it, as long as the money comes from a legitimate source. So even if your daughter were to write a check that you endorse over to the IRS, she would not be able to claim that amount as a tax deduction.

It seems that she is looking for ways to save money by lowering her income taxes. But there's a more direct way to increase her net worth: Rather than helping her lower her expenses, you can help boost her income. You and your wife can each make a financial gift of $13,000 to your daughter and her husband each year, without tax consequences to you or them. That's a total of $52,000 per year from your family to theirs, surely more than enough to make up for what your kids will "lose" in not being able to claim those property taxes as a deduction.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at janet@inman.com.

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