In March of 2011, the Supreme Judicial Court (SJC) issued a decision which could have significant implications for Massachusetts commercial landlords with respect to unsafe conditions on their property. In Bishop v. TES Realty Trust (SJC-10696), the sole tenant of the building notified the landlord that the roof was leaking even though the lease clearly obligated the tenant to conduct all repairs. Approximately two years after the tenant provided the notice, plaster fell into the tenant’s eye, and she fell backward and was injured. The tenant then filed suit in Superior Court, alleging that the landlord was negligent in its failure to correct the unsafe condition of the roof.
Prior to the appeal to the SJC, the Superior Court had rendered a decision in favor of the landlord, finding that (i) the terms of the lease stated that the tenant was responsible for making all necessary repairs; (ii) the landlord owed no common law duty of care under the lease to remedy an unsafe condition; and (iii) Massachusetts General Laws Chapter 186, Section 19, did not apply to commercial leases.
Massachusetts General Laws c.186, §19 provides:
"A landlord or lessor of any real estate except an owner-occupied two- or three-family dwelling shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant, his invitee, or any one occupying through or under the tenant, exercise reasonable care to correct the unsafe condition described in said notice except that such notice need not be given for unsafe conditions in that portion of the premises not under control of the tenant. The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable."
While acknowledging the explicit terms of the lease, the SJC in Bishop focused on whether M.G.L. c.186, § 19 applied to commercial leases. The SJC reviewed the legislative history of the statute in order to determine the intent of the Legislature. Reasoning that the Legislature only excluded two-and three-family dwellings from the statute, the SJC ruled in Bishop that the statutory duty of a landlord under M.G.L. c.186, §19 to use reasonable care to correct unsafe conditions of which it has been notified by a tenant applies to commercial leases.
In holding that the landlord's liability under M.G.L. c.186, §19 for areas under a tenant's control only arises after it has received written notice from the tenant, the SJC opined:
"The statutory duty imposed by §19 applies only where the required notice of an unsafe condition has been provided to the landlord. Where the lease imposes on the tenant a duty to repair, the tenant is unlikely to provide such notice, and is more likely to repair the condition herself. Where a tenant with such a duty under the lease gives the required notice and the landlord remedies the unsafe condition, the landlord may bill the tenant for the cost of repair or, as expressly provided under the lease in the instant case, charge the cost of repair as additional rent."
In a significant expansion of the liability that commercial landlords previously had under common law, the SJC’s holding in Bishop could result in substantial liability to commercial landlords if a tenant provides written notice of an unsafe condition not caused by the tenant and the landlord fails to remedy that condition within a reasonable time after such notice. As the SJC notes in Bishop, this liability will accrue to landlords even if responsibility for the particular repair has been delegated to the tenant under the terms of the lease and even if the defect is an area over which the tenant has control. Prior to Bishop, a landlord was liable under common law for injuries arising from unsafe conditions only if (1) the landlord "contracted to make repairs and made them negligently, or (2) the defect that caused the injury was in a 'common area' or other area appurtenant to the leased area, over which the lessor had some control." Humphrey v. Byron, 447 Mass 322, 328-329 (2006). After Bishop, so long as the tenant provides a written notice of an unsafe condition not caused by the tenant and located in an area under its control, the allocation of responsibility for repairing such condition under a lease no longer controls and the landlord has a statutory duty to repair the unsafe condition. Moreover, M.G.L. c.186, §19 makes it clear that its provisions cannot be waived by lease language.
The most prudent course of action for landlords upon receipt of such an unsafe condition notice is to make the repair expeditiously. In many instances, the landlord will be permitted to recoup the cost of the repair from the tenant under the terms of the lease (as the SJC acknowledged was the case under the Bishop lease), but, in the meantime, the landlord will have averted the possibility of substantial liability for injuries caused by the unsafe condition.