On March 1, 2011, in Bishop v. TES Realty Trust, 459 Mass. 9 (2011), the Supreme Judicial Court of Massachusetts determined for the first time that G.L. c. 186, § 19, which concerns a landlord’s duty to make repairs when notified of an unsafe condition, applies to Massachusetts commercial landlords. This decision alters the long-standing common law rule that Massachusetts commercial landlords are only obligated to make repairs to common areas or when they specifically contract to make repairs. As a result of Bishop, Massachusetts commercial landlords are now required to remedy unsafe conditions that exist anywhere on a leased premises once they are given proper notice.
Despite notifying the defendant landlord of a skylight leak nearly two years prior, the plaintiff tanning salon operator in Bishop was injured when plaster from the ceiling fell into her eye and caused her to trip over a bucket that she had placed on the floor to catch water from the leak. The plaintiff then sued the landlord for her injuries and argued that the landlord had a statutory duty to make repairs to the roof under § 19, which provides that "[a] landlord or lessor of any real estate . . . 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, . . . exercise reasonable care to correct the unsafe condition[.]" Although the plaintiff had provided the landlord with notice of the unsafe condition, the trial court held that §19 did not apply to commercial leases and that, under the common law, the plaintiff was responsible for making all repairs to the leased premises.
Practical Effect Of The Bishop Decision
The Bishop decision drastically changes commercial landlords’ obligations with regard to repairing unsafe conditions. Massachusetts commercial landlords are no longer only responsible for making repairs to common areas and for making repairs that they have a contractual obligation to assume. The law is now clear that §19 imposes an obligation on Massachusetts commercial landlords to repair any unsafe conditions that exist on their premises once they are provided proper notice of the same. The Bishop decision further explains that any lease provision that attempts to waive a commercial landlord’s obligations under §19 is "void and unenforceable."
Under circumstances where a commercial lease provides that the tenant is obligated to make repairs to the premises, a landlord owes no duty to make repairs unless the tenant provides notice of an unsafe condition. If a commercial tenant that is contractually obligated to make repairs notifies the landlord of an unsafe condition on the premises, under Bishop, the landlord still must make the repairs, but the landlord may bill the tenant for the cost of the same.
Ultimately, the application of §19 to Massachusetts commercial landlords will not only expand landlords’ liability to tenants, but it is also likely to expand their liability to third parties, even when the underlying lease provides that the tenant bears the duty of maintenance and repair.
On appeal, the Supreme Judicial Court recognized that it had never decided whether § 19 imposed a duty on commercial landlords. After analyzing the language and legislative history of the statute, the Court determined that the Legislature intended the duties imposed by the statute to apply equally to commercial and residential landlords.