Don't Agree to Maintain ‘Exterior’ of Building or Center

If your lease is like some we've seen, it may hold you responsible for repairing and maintaining your building's or center's “exterior.” But using a vague word like exterior can hurt you—you may wind up responsible for more than you intended. Suppose a tenant or a visitor is injured in an area the tenant or visitor considers part of the exterior. You're likely to get sued for damages and face accusations that you failed to properly repair or maintain that area. Then you'll have to spend time and money trying to convince a court that you weren't responsible for repairing or maintaining that area because it's not part of the exterior.

Exterior Created Ambiguity in Arkansas Lease

That happened to an Arkansas owner. It rented office space to a tenant that included a deck in the rear of the building. The lease required the owner to “maintain the exterior walls, doors, and roof, exterior, interior, plumbing, wiring…of the structure upon the leased premises in reasonable state of repair” [emphasis added]. The owner had its employees check the deck and make minor repairs to it—but nothing more. The tenant was injured when a board broke as he was walking on the deck. The tenant sued the owner for failing to properly repair and maintain the deck. The owner argued that it didn't have those responsibilities. The lower court dismissed the tenant's case, saying that the owner wasn't responsible for repairing or maintaining the deck. The tenant appealed.

An Arkansas appeals court ruled that the tenant's case shouldn't have been dismissed because it was unclear if the owner was responsible for repairing and maintaining the deck. The court noted that the lease required the owner to maintain the “exterior” in a reasonable state of repair. But the word “exterior” was ambiguous. It's “susceptible to more than one interpretation in that it may or may not encompass the deck,” the court said [Denton v. Pennington].

Practical Pointer: Use terminology more precise than exterior in your lease, advises Ohio attorney Abraham Lieberman. List the specific items and structures on the outside of your building or center that you're responsible for repairing and maintaining, he says. Then add that you're not required to repair or maintain anything that's not on the list. Consider making the tenant responsible for repairing and maintaining any items or structures not on the list if the tenant intends to use them, Lieberman adds.

CLLI Source

Abraham Lieberman, Esq.: Member, Baumgartner & O'Toole, 5455 Detroit Rd., Sheffield Village, OH 44054; (440) 930-4001; alieberman@b-olaw.com.