Massachusetts Changes an Important Rule for Liability of Commercial Landlords

Joel SowalskySince 1972, Massachusetts has had a law that requires a landlord to repair an unsafe condition on a tenant’s property once the landlord receives written notice of the unsafe condition.  The law applies even if the condition is completely within the tenant’s property and even if there is a written lease that specifically requires the tenant to repair the unsafe condition.  If the tenant or a guest of the tenant is injured by the unsafe condition after the landlord receives the written notice and doesn’t repair it, the landlord is responsible for the damages.

For nearly 40 years, it was assumed by most judges, lawyers and real estate professionals that this law applied only to residential property.  In March 2011, however, the Massachusetts Supreme Judicial Court ruled that it applied to non-residential property, too.  In that case, the operator of a tanning salon was injured by an unrepaired roof problem that she had brought to the attention of her landlord two years earlier.  Even though the lease clearly required the tenant to make all necessary repairs to the leased property, including the roof, the court held that the landlord was responsible for her injuries under the 1972 law.

After this judicial decision, the lobbyists for commercial landlords went to work on the Massachusetts legislature, and on August 7, 2012, a law was passed that effectively nullified most of the 2011 judicial ruling.  Today, if a non-residential lease includes language that imposes upon the tenant a duty to make repairs to the premises, then the 1972 law does not apply.  If the lease is silent about this, however, then the law does apply.

General Counsel Says:  For landlords of non-residential property, this means that you should be sure that you have a written lease with your tenants and that it includes language specifically waiving the Massachusetts law and imposing on your tenants the duty to repair their properties.   For tenants of non-residential property, read your lease!  If you have a written lease that has this language, then you have the duty to repair it, and if you don’t have a written lease, then the landlord has the obligation to repair an unsafe condition once you have notified the landlord about it.

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