Failure to Provide Leak-Free Roof Constitutes Breach

Facts: Shortly after signing a lease, the tenant experienced significant leaking from the roof of her building. After several attempts by the owner to fix the leaking roof and an eventual roof replacement, the tenant moved back into the space. Another storm caused additional water damage and made the space uninhabitable. The tenant moved out and sued the owner, alleging that the lease required it to provide a serviceable, leak-free roof. The circuit court ruled in favor of the tenant.

The owner appealed, arguing that: (1) the lease required the tenant to give it notice of defect and time to repair before it would be in breach of the lease; and (2) any notice of defect it was given was not sufficient, considering it had replaced the roof and had no idea that the new roof would fail entirely.

Decision: The Virginia Supreme Court upheld the circuit court's decision.

Reasoning: The lease required the owner to keep the roof in “good repair at all times.” The court determined that the additional language that required the owner to “make such repairs upon knowledge of the necessity of said repairs” is not a limitation on the duty to provide a serviceable, leak-free roof. The court explained that the duty to keep the roof in good repair at all times would be effectively negated if the owner was required to repair the roof only when it was notified of defects.

Furthermore, the court disagreed with the owner's contention that because it tried to fix the roof in the past, it was shielded from liability unless and until it was given notice of defect. “To the contrary, maintenance of the roof was in the exclusive control of [the owner], and when it undertook to replace the roof, it bore the sole responsibility to assure that the new roof would be ‘in good repair’ as required by the lease terms,” the court said.

• Landmark HHH v. Gi Hwa Park, January 2009