Repairs & Maintenance

What tenants should watch for

Who fixes what

Landlord’s obligations. Push for clear Landlord obligation to maintain: (i) roof, walls, foundation, and structural elements; (ii) building exterior, windows, and weather-tight envelope; (iii) common areas, parking, landscaping, sidewalks, and exterior lighting; (iv) HVAC supply systems serving the Premises (especially building-wide systems); (v) plumbing and electrical supply to the Premises (up to the demising wall); (vi) ADA compliance for common areas and parking; (vii) compliance with laws applicable to the building shell.

Tenant’s obligations. Limit Tenant’s repair scope to: (i) interior of the Premises (excluding structural elements and base-building systems); (ii) Tenant’s improvements, fixtures, and equipment; (iii) damage caused by Tenant’s negligence or willful misconduct. Resist responsibility for: HVAC base units delivered by Landlord; building systems supplying the Premises; structural elements; exterior glass; ADA common-area compliance.

Capital vs. repair distinction. Coordinate with the Operating Expenses clause. Capital expenditures should be excluded from OpEx pass-through, with two narrow exceptions: (i) capital improvements required to comply with laws enacted after the Lease Commencement Date (amortized over useful life); (ii) capital improvements that reduce OpEx (amortized to the extent of realized savings). The line between capital and repair is fact-intensive; a written categorization at the time of expenditure (rather than at year-end reconciliation) reduces dispute.

HVAC maintenance responsibility: limits. Where Tenant accepts HVAC maintenance responsibility, landlord forms require a tenant-funded service contract with a licensed commercial HVAC vendor, delivery of the contract and service records to the landlord, and landlord step-in rights on tenant lapse. Tenant counsel should cap Tenant's exposure at maintenance and ordinary repair, allocate replacement to the landlord with any pass-through amortized and limited to the portion of useful life falling within the Term, and resist end-of-term condition standards that convert a maintenance duty into a replacement obligation.

Standards, timing, and remedies

Landlord: response times. Require commercially reasonable response times for repair requests: emergency repairs within twenty-four (24) hours; non-emergency within fifteen (15) business days. Tenant has the right to self-help and offset after notice and continuing failure to respond, with cost reimbursement at the Lease Default Rate.

Maintenance standards. Landlord shall maintain the Project at a standard consistent with first-class commercial properties in the same submarket. Tenant shall maintain the Premises in a clean, orderly, and safe condition.

Tenant access rights for repairs. Landlord shall provide reasonable access to Tenant’s personnel and contractors for repair, maintenance, and service of Tenant’s equipment within the Premises. Landlord shall provide twenty-four (24) hour access to the Building for Tenant’s business needs.

Rent abatement for unusable Premises. Because the covenant to pay rent is generally independent, a Landlord repair failure (for example, inoperative elevators) or an outside cause such as a utility outage does not by itself excuse rent. Negotiate an express abatement right whenever the Premises are unusable, whatever the cause, because force majeure clauses and the common-law impracticability doctrine generally do not relieve the tenant of its monetary obligations.

Drafting and interpretation traps

“Keep in good condition” as a hook against as-is delivery. A landlord covenant to “keep” a building component in good condition and repair implies that the component was in good condition at commencement and can override an as-is delivery clause, obligating the landlord to put the component in good condition. Tenant counsel should seek “keep in good condition and repair” phrasing for the roof, structure, and building systems, and should resist landlord substitutes such as “maintain in its present condition,” which landlord guidance recommends precisely to avoid the implied commitment.

Repair covenant does not include replacement. A tenant obligation to keep, or to pay the costs of keeping, the roof or premises “in good order, condition and repair” does not (absent express language) extend to roof replacement or restoration-scale work, and a tenant's history of performing its own repairs does not waive its right to contest replacement-scale charges. Tenant counsel should nonetheless make the exclusion express: Tenant's repair and maintenance obligations exclude replacement and capital-scale restoration.

Buildout code compliance survives Landlord approval. Landlord work-letter forms provide that Landlord’s review or approval of Tenant’s drawings and specifications does not shift responsibility: Tenant alone remains responsible for the buildout’s compliance with all applicable laws, including ADA Title III as modified from time to time. Price this risk into the design-professional engagement and require Tenant’s architect to certify code compliance.

Compliance with laws and hazardous materials

Compliance with laws: scope of each party. Landlord complies with laws applicable to (i) the building shell, (ii) common areas, (iii) ADA for common areas and parking, and (iv) any law applicable to the project as a whole. Tenant complies with laws applicable to (i) Tenant’s specific use of the Premises (e.g., business licensing, food-safety, professional licensing), (ii) Tenant’s improvements, and (iii) any law applicable solely to Tenant’s operations. Costs of compliance with laws enacted after the Lease Commencement Date: allocate based on benefit (capital improvement vs. routine compliance, project-wide vs. tenant-specific).

ADA path-of-travel triggers. Landlord ADA forms allocate to Tenant not only Title III compliance within the Premises but also path-of-travel upgrades in the Common Areas triggered by Tenant’s alterations, and even Common Area compliance costs where Tenant’s use converts the Building from a commercial facility into a public accommodation. Resist bearing Common Area path-of-travel costs where the triggering alteration is typical for the Permitted Use; at minimum, require that Landlord perform the work subject to agreed cost-sharing limits.

Hazardous materials. Tenant warrants it will not bring hazardous materials onto the Premises beyond customary office or business supplies (e.g., printer toner, cleaning products). Landlord represents that to its knowledge after reasonable inquiry, no hazardous materials are present in the Premises or Project. Hazardous materials remediation costs: Landlord’s responsibility for pre-existing conditions; Tenant’s responsibility for Tenant-caused contamination. Mutual indemnity.

Hazardous materials: pre-existing and third-party contamination. Confirm that the remediation allocation excludes contamination that predates Tenant’s occupancy or is introduced by parties other than Tenant, its employees, or its contractors; landlord forms often assign Tenant responsibility for anything discovered in the Premises during the Term.