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In a Lease Agreement, who has the Duty to Maintain and Repair?

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Last revision: May 23rd, 2019
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Category: Housing and Real Estate
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If you're leasing a property and something goes wrong, who has the duty to fix it? In general, who has a duty to maintain the premises in good condition?

Most of us that have Residential Leases ponder these questions, especially if the item that needs to be fixed is a big one, or if something serious has happened to the property. However, these questions come up in more than just long-term Residential Lease situations: They are also something to consider before you sign a Commercial Lease or a Short-Term Lease for a vacation property. For example, in the vacation setting, what are your responsibilities for maintaining the premises for your short stay?

You'd also want to keep these questions in mind at the start of any Sublease Agreements you may sign for a medium-term residency during someone else's lease.

In this guide, we'll talk about these four different types of leases and which party has the duty to maintain and repair in each situation.

 

Key definitions

Before we move on, let's go over some quick definitions.

A Commercial Lease is any agreement between a landlord (the owner of the property) and a tenant (the person that rents the property) for the long-term rental of a commercial space. In this context, the commercial space can be anything that the tenant may operate a business in, such as an office, a retail space, a fitness space, or even a whole building.

A Residential Lease is any agreement between a landlord and tenant for the long-term rental of a residential space. In this context, the residential space can be anything that the tenant may live in, such as a house, townhouse, apartment, condominium, trailer, or any other living space. In the US, Residential Leases are generally 12 months or longer, but in some big cities can be as short as seven months.

A Residential Lease and Commercial Lease can never overlap with each other - the lease must definitely be one or the other and the space can generally only be used for one or the other because of zoning laws all over the US.

A Sublease Agreement is a document that's used when there is already a tenant with a lease (it can be commercial or residential, but it is usually mostly residential) and that tenant would like to sublease the space to someone else. This person becomes known as the subtenant. Subleases can be either short-term or long-term, but no matter what, they are always shorter than the length of the original lease, otherwise the relationships wouldn't make sense.

A Short-Term Lease is just what it sounds like: A document that's a lot shorter than the length of a regular lease. These types of documents are used in settings like vacation rentals, where a person or group of people comes to stay for a weekend or week or maybe even a couple of weeks and they choose to utilize a residential property rather than a hotel.

Maintainance, in this case, will be the general upkeep of the space: things like painting, cleaning, regularly-scheduled servicing of electric elements, etc. Repairs would be in situations where a portion of the space has been damaged and needs to be fixed.

Now that we've gotten the definitions out of the way, let's move on to discussing which party has the duty to maintain and repair in each of these lease situations. Please be aware this guide is not meant to constitute legal advice and instead should be taken as informational only.

 

Duty to maintain and repair in a Commercial Lease

The most common situation in a Commercial Lease is for the actual lease document to spell out exactly who is responsible for what. Generally, in these situations, the lease puts the responsibility for nonstructural repairs and maintenance squarely on the shoulders of the tenant.

It's easier to get a clear idea of what the commercial tenant is not responsible for, so that we can begin to discuss what the commercial tenant is definitely responsible for. In this context, "nonstructural" means parts of the space that aren't considered major building elements. For example, the commercial tenant usually won't be responsible to fix anything concerning the building's roof or foundation. Similarly, major building systems, like full electric, heating, cooling, ventilation, etc., also generally will not be the responsibility of the commercial tenant (although this is sometimes dependent on the situation and the lease). The tenant may be responsible for the upkeep of the systems within their specific unit or space and may be responsible for minor repairs (such as repairs that don't involve any kind of overhaul of the building's systems and are just small fixes). The reason for this is clear: not only would it not make sense for a tenant to have to deal with things related to the major construction of the building, but the commercial landlord really doesn't want any of their tenants to have anything to do with that, because that would be making huge decisions regarding the building that the landlord owns.

A commercial landlord also has the responsibility for complying with all codes related to the building, such as safety and fire codes.

Conversely, the commercial tenant will always have the duty to maintain the space in good condition and repair nonstructural elements. For maintenance, this generally means keeping the space clean, not allowing garbage to pile up, doing periodic cleans of the decorative elements in the space, such as deep carpet cleans, etc. The repair of nonstructural elements means the commercial tenant will usually need to fix things like lightning or small plumbing issues (like bathroom or kitchen issues in their rented space).

The major issue to note here is that if the tenant clearly broke something, they are usually responsible to fix it, no matter what the distribution of repairs and maintenance is supposed to be. That's true in all lease situations, not just commercial.

All of these issues, however, can be negotiated in the lease beforehand. As a commercial tenant, it's important to carefully review the document to ensure that you aren't responsible for anything you shouldn't be, such as major building elements or code issues.

Final takeaway: With Commercial Leases, tenants usually have the most responsibility of all other types of leases, in that maintenance and repairs in their unit are generally their responsibility.

 

Duty to maintain and repair in a Residential Lease

In a Residential Lease situation, the questions of who is responsible for maintenance and repair are simpler, but as with Commercial Leases, these issues are most often discussed within the lease document itself.

Generally, the residential tenant is responsible to keep their unit clean and free from damage. For example, the tenant cannot allow air conditioning vents in the unit to get so dirty that they no longer function. Similarly, the tenant must keep appliances included with the lease in good working order to the best of their ability - i.e., if tenant intentionally destroys a washing machine, they would need to pay for that.

Other than that, however, the residential landlord is usually responsible for the duty to maintain and repair. This includes making sure building systems such as heating and cooling are working (and fixing those systems, even within the tenant's individual unit, if something goes wrong), as well as addressing any plumbing issues or routine maintenance on appliances. The difference between this situation and a Commercial Lease is that the residential tenant can usually rely on the landlord for all maintenance and repairs, except simple cleaning.

Most states require that a residential landlord make the rental space habitable before move-in, meaning it has running electricity, water, is without pests, free from structural defects, and with properly maintained building systems. After that, the landlord is responsible for keeping the unit in habitable condition.

The specifics of state and municipal laws may bring some variability, so for any questions on these issues, it's important to consult with a licensed attorney in your state.

Final takeaway: With Residential Leases, tenants must keep their own units clean and not cause damage, but other than that can rely on the landlord for most maintenance and repairs.

 

Duty to maintain and repair in a Sublease

In a Sublease Agreement, the responsibilities for maintenance and repair are almost the same as in a Residential Lease, except in this case, the subtenant is responsible for the day-to-day upkeep of the premises to the tenant and the tenant is still responsible for everything they were to the landlord. For example, the subtenant would be responsible for keeping the place clean and without overt damages, but if something did happen and the subtenant did not take care of it, that would not absolve the responsibility of the tenant to the landlord.

Similarly, just because there is a subtenant in the space doesn't mean the landlord can shirk their responsibilities. Repair and maintenance for the residential premises still goes to the landlord.

Here, imagine the landlord and tenant each still have their exact same responsibilities to each other as they would in any other Residential Lease, but now the subtenant has additional responsibilities to the tenant.

In a commercial sublease, generally, the same rules apply: in other words, the responsibilities that the commercial tenant had to repair and maintain the premises are transferred to the commercial subtenant. The commercial tenant is not absolved of any responsibilities to the commercial landlord, however, so the duties owed by the commercial subtenant are directly owed to the commercial tenant.

These issues can be worked out in the Sublease Agreement, however, and sometimes the landlord requires that now the tenant will be responsible to the subtenant for certain issues within the unit (but never in the common spaces).

Final takeaway: Sublease Agreements are similar to Residential Leases in that the landlord-tenant relationship and responsibilities stay the same, but the subtenant is responsible for keeping the space clean and orderly.

 

Duty to maintain and repair in a Short-Term Lease

The specifics of maintenance and repair in a Short-Term Lease are the clearest yet: unless the tenant broke it, the tenant doesn't have to fix it. In other words, in vacation rental situations, the tenant should do their best to keep the space clean, but often times these types of vacation landlords will have specific clean-up clauses or will hire cleaning crews. Beyond that, since the lease is of such a short duration, the landlord will be responsible for taking care of everything else, as well.

As always, these situations are variable based on what is stated in the Short-Term Lease itself, but there is generally very little responsibility on the shoulders of a Short-Term tenant.

Final takeaway: Short-Term tenants usually have very little responsibility other than to ensure they don't break or damage anything in the space.

 

Remember that all of the generalities we've discussed here may be variable in your particular state or municipality, so if you ever have a question, it's a good idea to check your local laws or to get a licensed attorney's help.

Additionally, the particulars of the lease you signed or are considering signing may have really specific points for you to note, including differences in how things are most often done. Be sure to review any lease carefully before signing to make sure it's all been understood.

 

Final takeaways

1. Read your lease documents carefully before you sign, to know what you are getting into.

2. Check with a licensed attorney in your state who specializes in the type of lease you are signing.

3. Keep in mind that no matter what the lease says, if you've damaged something, you will be liable to fix it.

 

About the Author: Anjali Nowakowski is a Legal Templates Programmer at Wonder.Legal and is based in the U.S.A.

 

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