One of the most important clauses in a commercial lease is the section that addresses repair and maintenance obligations.
Generally, Georgia law requires the landlord to keep the premises in good repair (See O.C.G.A. § 44-7-13). However, in a commercial lease, the parties can agree to shift the obligation to repair and maintain the commercial property to the tenant. Both landlords and tenants should take care to review the repair and maintenance obligations in their commercial lease carefully prior to signing.
If the lease is silent as to repair obligations, Section 44-7-13 would control, and the landlord would be obligated to make all necessary repairs. However, most commercial leases contain a section addressing repair and maintenance obligations.
Often a commercial lease will allocate responsibility for specific repairs – the landlord agrees to repair the roof, exterior walls, foundation, and plumbing while the tenant agrees to repair the electrical system. But what if the lease is silent as to the heating and air conditioning (HVAC)? In that situation, the landlord would be responsible for repairing the HVAC system since the landlord has not shifted its repair obligation to the tenant in the lease.
Maintenance Obligations in Commercial Leases
Another distinction to note is the difference between “repairs” and “maintenance.” For example, if a lease requires the tenant to “maintain” the HVAC system, the tenant may be responsible for scheduling routine inspections with a vendor and regularly changing the air filter. But if the lease does not require the tenant to “repair” the HVAC system, and it breaks, then the landlord would still be obligated to make any necessary repairs.
Disputes over repair obligations can quickly lead to litigation between landlords and tenants. Under Georgia law, a tenant does not have the right to withhold rent payments even if a landlord has failed to comply with its repair obligations. Instead, the tenant can either:
(1) choose to make the repairs and seek reimbursement from the landlord, or;
(2) sue the landlord for damages caused by the landlord’s failure to make the repairs.
One exception is a situation which rises to the level of a “constructive eviction.” If the leased premises have deteriorated to the extent the tenant can no longer safely occupy them and conduct its business, the tenant may be justified in abandoning the premises and breaking its lease. There are specific legal requirements to prove a constructive eviction – you should consult with an attorney before attempting to claim that you have been constructively evicted from your business premises.
If you are a landlord or a tenant and you need advice regarding your rights and responsibilities under your commercial real estate lease, please reach out to me.
Katherine Silverman is a business litigator with a unique depth of experience in handling commercial real estate disputes.
