ALI-ABA Course of Study Modern Real Estate Transactions July 25 ...

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a. Scope and timing of Landlord’s work to make premises suitable for
occupancy prior to commencement of lease term are limited by
work letter or otherwise. See 2 MILTON R. FRIEDMAN, FRIEDMAN
ON LEASES §§ 23.1, 23.2, 23.3 (4th ed. 1997 & Supp. 2002); but
see also Levitz Furniture Co. of the Eastern Region, Inc. v. Cont’l
Equities, Inc., 411 So.2d 221 (Fla. Dist. Ct. App. 1982)
(Landlord’s agreement to build or complete a building for Tenant’s
occupancy creates an implied warranty of suitability that is not
terminated with respect to latent defects when Tenant takes
possession of premises).
b. Tenant’s remedies for breach of Landlord’s repair responsibilities
may be limited by requiring Tenant to waive right to claim
constructive eviction and giving Tenant only the right to make
repairs and recover costs from Landlord. See Bazzel v. Pine Plaza
Joint Venture, 491 So. 2d 910 (Ala. 1986).
c. Landlord requires Tenant to waive claims for consequential
damages resulting from burst water pipes, roof leaks, and similar
occurrences, even if such occurrences are the result of Landlord’s
negligence. See Zion Indus., Inc. v. Loy, 46 Ill. App. 3d 902, 361
N.E.2d 605 (1977); Swisscraft Novelty Co., Inc. v. Alad Realty
Corp., 113 N.J. Super. 416, 274 A.2d 59 (Ct. App. 1971); Smith v.
Smith, 375 So.2d 1041 (Miss. 1979); Meyer v. Caribbean Interiors,
Inc., 435 So.2d 936 (Fla. Dist. Ct. App. 1983); Fena v. Wickstrom,
348 N.W.2d 389 (Minn. Ct. App. 1984); Bijan Designer for Men,
Inc. v. St. Regis Sheraton Corp., 142 Misc. 2d 175, 536 N.Y.S.2d
951 (Sup. Ct. 1989) (clause protecting Landlord from
consequential damages resulting from Landlord’s renovation of
premises may not shield Landlord from damages if work goes
beyond scope of alterations permitted under lease); Stinson, Lyons,
Gerlin & Bustmante v. Brickell Building, 747 F. Supp. 1470 (S.D.
Fla. 1990) (court found that the Tenant and Landlord had agreed
that Landlord would not be liable for the “damage, inconvenience,
and annoyance” arising from alterations); see also Book
Production Indus., Inc. v. Blue Star Auto Stores, Inc., 33 Ill. App.
2d 22, 178 N.E.2d 881 (1961) (combination of Landlord’s duty to
repair with waiver of claims for consequential damages means no
recovery for consequential damages, but Tenant can recover cost
of repairs made on Landlord’s behalf).
2. Landlord’s covenant to furnish services to the leased premises. See 2
MILTON R. FRIEDMAN, FRIEDMAN ON LEASES § 12.1 (4th ed. 1997 & Supp.
2002); see also Midland Carpet Corp. v. Franklin Associated Props., 90
N.J. Super. 42, 216 A.2d 231 (1966) (exculpatory clause shielded
Landlord from liability for damage to Tenant’s property when Landlord’s
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