Whether commercial landlords are required by G.L. c. 186, § 19 to repair unsafe conditions upon written notice, regardless of the terms of the lease.

The plaintiff tenant leased a commercial building from the defendant landlord to be used as a salon. During the lease, the tenant gave written notice to the landlord that the roof was leaking. After that notice, while the tenant was examining the ceiling, a chunk of plaster allegedly fell into her eye as a result of the water damage, causing her to trip over a bucket and crash into a wall, sustaining injuries.

The lease did not assign responsibility for repairing the roof, but did provide that “The Tenant, at his expense, shall make all necessary repairs and replacements to the Leased Premises, including the repairs of pipes, electrical wiring, heating and plumbing systems, fixtures and all other systems,” but that “Tenant shall not make any alterations, additions, or improvements to, or install any fixtures on, the Leased Premises without Landlord’s prior written consent.”

The tenant filed a negligence action, and the judge granted a directed verdict for the landlord at the close of evidence, apparently on the basis that the landlord owed no duty to keep the roof in good repair. The tenant appealed, and the SJC transferred the case sua sponte from the Appeals Court. 

The question attracting the Court’s attention is whether G.L. c. 186, § 19, places a statutory duty on commercial landlords. The statute provides that “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 … of an unsafe condition, not caused by the tenant, … exercise reasonable care to correct the unsafe condition described in said notice. … Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable.”

The SJC previously explicitly reserved the question whether this statute applies to commercial leases. Humphrey v. Byron, 447 Mass. 322, 327 n.6 (2006). The only other case offered by the parties is Agustynowicz v. Bradley, 25 Mass. App. Ct. 405, 407 & n.3 (1988), which did not apply the statute, but held that the tenant was solely responsible for reasonable maintenance under a “net” lease putting the tenant in the position of land owner.

Neither party offers substantial guidance. Section 19 would seem to apply to commercial and residential leases equally, but its language is oddly vague. (By comparison, in other parts of the chapter the Legislature refers explicitly to “a lease of residential property,” G.L. c. 186, § 20, or “any residential or commercial property,” G.L. c. 186, § 21.)

From a policy perspective, the modern trend in commercial leases seems to be for flexibility—tenants can either take full possession of the property and stand as property owners, or allow the landlord to maintain control and provide the services of a property owner. If the statute is read as the tenant here proposes (and as the language seems to suggest), it will upset that balance by imposing an unwaivable obligation for landlords to repair unsafe conditions not caused by the tenant. That might even undo the bargain struck in this case, where the tenant agreed to make all repairs of “pipes, electrical wiring, heating and plumbing systems.”

One option, which is appealing from a public safety perspective, is to apply this section to commercial leases, but permit landlords to then seek reimbursement from tenants if the lease provides that tenants are responsible for repairs. That would ensure that all parties have an interest in keeping premises safe for customers, but also allow the parties to allocate costs. Another option, which would preserve the greatest flexibility, would exclude commercial leases from this section if it appears that the tenant has undertaken to stand in as land owner. It is harder to see how to fit this reading into the statute, however, which does not by its terms distinguish between commercial and residential leases, and bars any waiver. The third option, to exclude commercial leases from this section entirely, does not seem supported by authorities cited by either party.