In the case of Bishop v. TES Realty Trust (March 1, 2011), the Massachusetts Supreme Judicial Court ("SJC") interpreted Mass. Gen. Laws ch. 186, § 191 as requiring commercial landlords to take reasonable care to correct unsafe conditions described in a written notice from a commercial tenant. While the language of the statute was ambiguous, until now it had been generally understood by landlords and the real estate bar alike that the statute did not apply in the commercial lease context. Given this ruling, commercial landlords must repair unsafe conditions after tenants provide written notice thereof, even if a commercial lease requires a tenant to make such repairs. No written notice is required if the condition is in a portion of the premises not under the tenant's control, such as a common area. If the landlord does not repair the unsafe condition in a reasonable amount of time, the tenant, or those legally present on the premises, such as a commercial tenant's clients, can sue the landlord for damages, including personal injury.

In Bishop, the tenant leased an entire commercial building in which it operated a tanning salon. Water leaks appeared in the area above some of the tenant's tanning beds. The tenant provided written notice to the owner/landlord complaining about the leaks, although the lease provided that the tenant must repair and maintain the entirety of the building. The landlord later made a gratuitous repair of a portion of the roof, not including the area around the leaking skylights. Months after this repair, the tenant was setting up a bucket and towels to catch leaking rainwater when a piece of plaster fell from the ceiling around the leak, hit her in the eye, and caused her to fall and injure herself.

The tenant sued the landlord in Superior Court, claiming her injuries were caused by the landlord's negligent failure to maintain the roof. The trial judge granted the landlord's directed verdict. The trial court held that the landlord had no statutory duty to repair the roof because Mass. Gen. Laws ch. 186, § 19 categorically did not apply in commercial leases. It further held that the landlord had no contractual duty to repair the roof because the lease placed repair and maintenance obligations on the tenant. Thus, the only other avenue of relief was a claim for gross negligence in the landlord's gratuitous repair of the roof, but the tenant failed to present evidence substantiating gross negligence.

The tenant appealed to the Massachusetts Appeals Court, but the SJC transferred the case to itself on its own initiative. This somewhat infrequently invoked power of the SJC to transfer a case on its own directive indicates the SJC was keenly interested in hearing the case and setting forth a definitive standard, without an intervening appeals court decision potentially clouding the SJC's ultimate reading of the statute. The SJC reversed the trial court by relying on its interpretation of legislative history. It held that the statute applies to commercial leases and that a jury could have found that a roof leak near the tenant's tanning beds was an unsafe condition that had to be repaired by the landlord under the statute. Accordingly, the SJC ordered a new trial of the case under this standard.

The court stated that even if a lease requires the tenant to maintain and repair the premises (as was the case with the lease at issue), such a provision cannot be used to skirt the landlord's statutory obligation to repair unsafe conditions in leased premises upon written notice. The statute expressly says that any contractual provisions waiving the tenant's rights under this statute are void and unenforceable. However, the court noted that the presence of such a provision, even though it cannot be used to indemnify the landlord from liability, will make it less likely that a tenant will provide the requisite written notice. If no notice is given, no landlord liability exists as to the non-common area portions of the leased premises under the tenant's control.

The court noted that if the landlord receives written notice, the landlord may bill the tenant for the cost of repair or, if provided for in the lease, charge the cost of repair as additional rent. In any event, the cost of repair is likely smaller than the damages that might be asserted by tenants and their guests and the associated costs of litigating the claims.