April 2010
The Practical, Plain-English Newsletter for Owners, Managers, Attorneys, and Other Real Estate Professionals
inside this issue
Model Notice: Affirm Lease
with Tenant. . . . . . . . . . . . . . . . . . . . . . . . 3
Model Form: Use Proof of Service to
Document Eviction Process . . . . . . . . . . 4
Q&A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
➤ Leasing to Government Agencies
➤ Calculating Square Footage Fairly
Recent Court Rulings. . . . . . . . . . . . . . . . 7
Strong Pulse for Boston’s
Commercial Real Estate
Markets
Greater Boston’s commercial real estate
community appears to be among the
healthiest in the country, in terms of
the percentage of properties that have
remained current on their debt payments. Currently, only 2.7 percent of
the region’s property loans packaged in
commercial mortgage-backed securities (CMBS) were either delinquent or
in various stages of foreclosure, according to real estate experts. As of January,
there were roughly $800 billion in U.S.based CMBS assets. Approximately $46
billion—5.8 percent—of those securities
were backed by delinquent loans, according to a RealPoint Research report.
Greater Boston also had one of the
lowest percentages—14.6 percent—
of CMBS loans on watchlists—that
is, rosters of loans at risk of payment
delinquencies. The Dallas-Fort Worth
region has the country’s highest percentage of CMBS loans on watchlists.
The Phoenix-Mesa region has the country’s highest percentage of problem
CMBS loans considered delinquent or
in a state of foreclosure. Watchlists are
compiled by loan servicers in charge of
collecting mortgage payments.
fe ature
How to Enforce Lease of Tenant
on Verge of Eviction
Evicting a struggling tenant is never easy. Handling an eviction poorly
may create a contentious situation for you and your property manager, or even result in a lawsuit for wrongful eviction. In this economy,
it is critical to take action as soon as a tenant sends a partial rent payment or misses a rent payment altogether. Nonpayment of rent is the
most common breach of a tenant’s lease, and a major signal that it is
on the verge of a default. Protect yourself by following a two-step plan
to enforce the lease for a tenant experiencing financial difficulty.
If you want or need to retain the tenant, first try to create and
implement a plan that will help it continue to operate in your strip
mall, shopping center, or office building until its business improves.
However, if you can’t come to an agreement, closely monitor the
eviction process so that it is as efficient and painless as possible for
everyone involved—and you don’t suffer financial or legal damage
as a result.
(continued on p. 2)
Q&A
Determining Damage Liability from
Lease, State Laws
Q
My tenant claims that its business has been damaged by an
independent contractor that I hired to work at my shopping
center. Can it justifiably terminate its lease under a breach of contract
or some other claim? Does it have any other remedy?
A
“The first question to ask in any breach of contract case is
‘what does the lease say?’ ” advises White Plains, N.Y., real
estate attorney Mark Morfopoulos. Many leases provide that the tenant must give the owner notice if its space is damaged, and then the
owner has an opportunity to cure.
A lease may also include self-help provisions providing that a tenant has the right to make the repairs under certain circumstances and
offset the costs against the rent due.
(continued on p. 5)
2
C O M M E R C I A L L E A S E L A W i n si d er ® BOARD OF ADVISORS
Jacob Bart, Esq.
Stroock & Stroock
& Lavan LLP
New York, NY
Stuart D. Byron, Esq.
New York, NY
Harvey M. Haber,
QC, LSM
Goldman Sloan Nash
& Haber LLP
Toronto, ON Canada
April 2010
On Verge of Eviction (continued from p. 1)
Richard F. Muhlebach,
cpm, csm, cre
Woodinville, WA
Neil T. Neumark, Esq.
Dykema
Chicago, IL
Neil B. Oberfeld, Esq.
Isaacson Rosenbaum P.C.
Denver, CO
Carole L. Pechi, Esq.
Laude Pechi Law LLC
Abraham Lieberman, Esq. Glen Ellyn, IL
Stumphauzer, O’Toole,
McLaughlin, McGlamery Professor Patrick
Randolph
& Loughman Co., LPA
UMKC Law School
Sheffield Village, OH
Of Counsel, Husch
Marek W. Ludwig, Esq.
Blackwell Sanders
General Growth
Kansas City, MO
Properties, Inc.
Robert P. Reichman, Esq.
Chicago, IL
Siller Wilk LLP
Richard C. Mallory, Esq.
New York, NY
Allen Matkins Leck
Gamble Mallory & Natsis Marc L. Ripp, Esq.
Mack-Cali Realty Corp.
LLP
Paramus, NJ
San Francisco, CA
Susan Fowler McNally, Esq. Mark A. Senn, Esq.
Senn Visciano
Gilchrist & Rutter P.C.
Kirschenbaum P.C.
Santa Monica, CA
Denver, CO
Stephen J. Messinger, Esq.
Winnifred C. Ward, Esq.
Minden Gross LLP
Downey Brand LLP
Toronto, ON Canada
Sacramento, CA
Jeffrey A. Moerdler, Esq.
Mintz Levin Cohn Ferris
Glovsky and Popeo P.C.
New York, NY
Editor: Elizabeth Purcell, J.D.
Executive Editor: Heather Ogilvie
Production Director: Kathryn Homenick
Director of Operations: Michael Koplin
Step #1: Protect Your Interests First
When determining whether it is feasible or in the best interest of your
center or building to try to keep a tenant that is breaching its obligation to pay rent, don’t forget to enforce its lease terms at every point in
the process.
Affirm the lease. Regardless of how important your tenant is to the
building or center, worry about yourself first. Quickly deal with the
issue to prevent the tenant from inadvertently modifying the terms of
the lease, advises Peter D. Morris, a small business marketing expert
with over 30 years of experience in the commercial real estate industry
and the founder of Greenstead Group LLC.
For example, if you allow the tenant to pay late every month or
accept partial rent payments, it could argue that the lease has been
modified by an oral agreement. Prevent this by immediately meeting
with the tenant to affirm the terms of its lease as soon as it makes a
late or partial payment. For language you can include in your affirmation notice, see our Model Notice: Affirm Lease with Tenant. Tell
the tenant that rent will continue to be due on the day of the month
specified in the lease, but that you are accepting the late or partial
rent payment as a one-time consideration.
“It’s very important to affirm the lease so that it doesn’t become
modified, particularly if the tenant thinks that it can pay one week’s
rent at a time throughout the course of the month,” says Morris.
“Don’t turn this into a week-to-week tenancy,” he warns.
Base enforcement on cotenancies. In some cases, however, it’s more
advantageous to help the tenant to some degree, rather than enforce
the lease in its entirety and then evict the tenant for nonpayment.
VP & Managing Director: Mark Fried
Editorial Director: Anita Rosepka
Commercial Lease Law Insider (ISSN 0736-0517) is published by Vendome Group, LLC, 149 Fifth Avenue, New
York, NY 10010-6823.
Volume 28, Issue 12
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➤ Set Reporting Guidelines for Property Manager
Because it is providing financial information to you, a third-party property manager is obligated to report to you at least monthly regarding
financial issues and any other predetermined topics. However, if your
property manager works directly for you, it probably has a tendency
to check in more often. But both types of property managers should
communicate more frequently if there is an impending default, and you
should set specific guidelines for reporting in that situation in addition
to customary reporting requirements.
“The general rule is that a property manager should talk to the
owner immediately upon any substantial change to the tenancy and
then going forward as each step of the eviction process is contemplated
or finished,” advises Peter D. Morris of Greenstead Group LLC. Make it
clear to a third-party property manager that it should and can act only
on your instructions—not unilaterally—and that your written approval is
necessary to authorize issuing a default notice, which would change the
cash flow and tenancy of the property.
Remember when setting reporting guidelines for both types of property managers that you can choose the issues that you want information
about and the intervals for updates, and require them to formally document all reports.
© 2010 by Vendome Group, LLC. Any reproduction is strictly prohibited.
For more information call 1-800-519-3692 or visit www.vendomegrp.com.
April 2010
3
C O M M E R C I A L L E A S E L A W i n si d er ® You should base your decision to
enforce your struggling tenant’s
lease (even though you know that
it cannot pay), help it, or let it out
of its obligations altogether on
the outlook of your whole property. This is especially important
at retail properties that have tenants with cotenancy clauses or
other occupancy requirements in
their leases. Create a tenant strategy manual with your property
manager that includes information
about cotenancy clauses that tie
the struggling tenant to the overall
occupancy of the center.
“If you look at a tenant in isolation, you may not realize that by
letting it go dark it might be tripping up another tenant’s cotenancy
clause,” warns Morris. “Even if the
tenant isn’t paying rent, it might be
advantageous to keep the lights on,
depending on the wording in certain
cotenancy clauses,” he points out.
Practical Pointer: Don’t talk
to tenants about an eviction that is
or may be happening in your center
or building. The owner and its property manager are under no obligation to talk about what is happening
with another tenant’s lease. “I’ve
held this rule sacrosanct throughout my career,” Morris says. Even
if a tenant’s cotenancy clause may
be affected by the eviction, it is the
tenant’s responsibility to enact the
clause—not yours.
M od e l N o t i c e
Affirm Lease with Tenant
You can use this Model Notice, drafted with help from Peter D. Morris,
commercial real estate expert and founder of Greenstead Group LLC, to
affirm your lease with a tenant in danger of a default and eviction after
granting it a one-time rent relief measure.
Note that the tenant’s affirmation of the lease terms will negate any
later arguments that the lease was modified by a pattern of late or partial payments or nonpayments. Show this notice to your attorney before
adapting it for your own situation.
LEASE AFFIRMATION
[Insert date]
[Insert owner’s name & address]
Re: [Insert identification of space and center’s/building’s name]
Dear [insert tenant’s name]:
This letter shall constitute a lease affirmation notice for the lease dated
[insert lease date] for the above-mentioned premises, by and between [insert
owner’s name], as Owner, and [insert tenant’s name], as Tenant. Unless otherwise defined herein, all capitalized terms shall have the same meaning
ascribed to them in the lease.
1.
Rent relief. Due to [insert reason for late or partial payment or nonpayment of rent, e.g., market conditions, decrease in sales], Owner has
agreed, as a one-time consideration, to accept [insert late payment, partial payment, or nonpayment] of Rent.
2. Rent. The foregoing rent relief notwithstanding, Rent will continue to
be due on [insert day of month specified in lease]. Failure to immediately resume making timely payments of monthly Rent shall constitute
a default under the terms and conditions of the Lease.
3.
Default. Should a default under the terms and conditions of the Lease
continue, Owner reserves the right to take legal action, including, but
not limited to, Lease termination and Eviction.
4.
Affirmation of Existing Lease. Owner and Tenant expressly affirm
in each and every respect the remaining provisions of the Lease not
affected by this Notice, which provisions remain in full force and effect.
Tenant ’s Signature_ __________________________________________________ Date_ ______________
Agreed to and Accepted By:
Step #2: Stick to Lease
Terms, Local Law
If you ultimately have to let your
struggling tenant go dark, it may
become contentious. Protect yourself by enforcing all of the tenant’s
lease terms during the eviction
process and following eviction
requirements in your jurisdiction—and document every transaction. Require your tenant to
sign for hand-delivered notification. For an example of a proof of
Owner’s Signature____________________________________________________ Date_ ______________
service form you can use, see our
Model Form: Use Proof of Service
to Document Eviction Process.
Discuss move-out provisions.
Prior to its eviction, meet with
your tenant to discuss moveout requirements, most of which
should be dictated by the lease.
The removal of the tenant’s chattels (that is, inventory and equip-
ment) is a major issue. Find out
what equipment is leased or under
a sales contract so its owners don’t
accuse you of aiding and abetting
in the unlawful removal of their
property. Keep in mind that, generally, equipment like cash registers or photocopiers is encumbered
in some way.
(continued on p. 4)
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4
April 2010
C O M M E R C I A L L E A S E L A W i n si d er ® On Verge of Eviction
ed damages or penalties that might
be accruing.
During the meeting, determine
what chattels must stay and provide your tenant with notification
that anything that has been left on
the premises will be “deemed to
have been abandoned” by it and
that you will be “free and clear to
dispose of it however the owner
sees fit.” This language frees you
from having to apply the value of
any remaining chattels to liquidat-
Don’t forget to review all other
provisions in the lease that pertain
to the tenant’s move-out. Make
it clear that moving out under
eviction circumstances does not
change the terms in the lease governing chattels, fixtures, the condition of the space, security deposits,
or other end-of-lease obligations.
(continued from p. 3)
Comply with tenant’s legal
options. “Protect yourself with
M od e l Fo r m
Use Proof of Service to Document
Eviction Process
Documenting every transaction with your tenant during the eviction process can keep things on track by preventing any claims that it was unfairly
evicted. Use a proof of service form like this one to prove that the tenant
was given adequate notice and that you followed the law when evicting it.
Show this proof of service form to your attorney before using it.
PROOF OF SERVICE
State of [insert state]
The undersigned, being duly sworn, says:
County of [insert county]
1. I am over 18 years of age.
[Use pars. 2 and 3 if you personally delivered the notice to the tenant by hand.]
2. On [insert date] at [insert exact time], I delivered and left a true copy of
the attached [insert description of official notice, e.g., rent demand/default
notice/eviction notice] with [insert (a) name of tenant(s) and address; or (b)
name of other person who accepted the notice on behalf of the tenant(s)
with the following phrase: “a person of suitable age and discretion,
who was willing to receive same on behalf of the tenant(s) and who was
employed at the tenant’s space.”]
3. The person served is described as:
Sex _________________________________ Approximate Age ______________________
Height ______________________________ Weight _ _____________________________
Skin color ___________________________ Hair Color ___________________________
Other Distinguishing Characteristics _________________________________________
[Use par. 4 if you mailed the notice.]
4. On [insert date] I mailed true copies of the [describe type of notice] by
[describe how notice was sent, e.g., regular first-class mail, certified mail
and/or registered mail] enclosed in a postage-paid, properly addressed
envelope to [insert tenant’s name and address, and insert any other
addresses for the tenant where copies of the notice were mailed]. Said
mail was deposited within a Post Office box under the exclusive care and
custody of the United States Postal Service.
Signature and Title___________________________________________________ Date_ ______________
written documentation, because
a tenant can always turn around
and say that it was unfairly evicted
from the premises,” warns Morris.
And local laws may be on its side.
Certain jurisdictions have relief
from forfeiture, allowing your tenant to go to a court after you have
given it notice of the breach of its
lease and argue that you are being
unfair or that the breach isn’t
deserving of a default. If the court
agrees, it will grant relief from
forfeiture that puts the default in
abeyance for only that instance
and that particular type of breach,
such as nonpayment of rent.
For example, as long as your
tenant resolves its breach for nonpayment of rent by paying the balance that it owes, it can’t go into
default—but it can’t ask for relief
from forfeiture for nonpayment of
rent again. The tenant could try to
get relief from forfeiture for only
other types of breach from that
point on.
Morris has told some tenants
when handing them notices of
breach of lease that they can seek
relief from forfeiture, if he and the
owner have agreed that they want
to keep those tenants, but also
want them to start fulfilling their
lease obligations. Morris says that
using the court system to back him
up sometimes is more effective
than repeatedly asking a tenant to
change its behavior.
Practical Pointer: If your tenant is breaching its lease in more
than one way, include them all in
a single notice of breach of lease.
That way, you don’t have to send
separate notices and then deal with
the tenant’s election of relief from
forfeiture for every breach, prolonging the pain. While your tenant
may get relief from forfeiture for all
of the breaches in that notice, the
tenant won’t have any remedy for
repeating them in the future.
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April 2010
5
C O M M E R C I A L L E A S E L A W i n si d er ® Be Courteous but Cautious
Be effective and efficient when
enforcing your troubled tenant’s
lease throughout the eviction process. Understand that an evicted
tenant loses its investment and
its employees lose their jobs. And
be as pleasant and professional
as possible when performing the
actual eviction, and instruct your
property manager to do the same.
However, continue to document
whether the tenant has complied
with the move-out provisions in
its lease and any further steps that
you may have to take.
Insider Source
Peter D. Morris SCSM, SCMD, CLS:
Greenstead Group LLC, 1528 Ard Eevin
Ave., Glendale, CA 91202; pmorris@beyond-
the-building.com; www.beyond-the-building.com.
For more information, visit
www.commerciallease
lawinsider.com
Search Our Web Site by Key Words:
eviction; nonpayment of rent;
breach of lease; default; relief from
forfeiture
Q&A (continued from p. 1)
Some leases may also give the tenant the right to
abate rent if it is prevented from operating its business for an agreed-upon number of days.
Insurance provisions also could apply, Morfopoulos points out. “A tenant would certainly make a
claim with the owner’s insurance carrier for any damages caused to its property unless the lease provided
that the tenant take out insurance to cover the loss,”
he adds.
Factors such as whether the independent contractor was in the tenant’s space when the damage
occurred may also determine liability. If so, and it
did not have the tenant’s permission to be there, the
tenant could have a trespass claim against both the
owner and independent contractor, Morfopoulos
warns. But again, the lease would reveal whether the
owner had the right to access the premises, he stresses. (Keep in mind, however, that owners generally
are permitted to have access to a tenant’s premises to
make certain repairs.)
In the absence of any lease provisions dealing with
damage caused by independent contractors, state
laws may apply, says Morfopoulos. For instance, New
York Real Property Law Section 227, “When Tenant
May Surrender Premises,” may apply if the premises
is deemed to be “destroyed.” In New York, there is no
law that requires either an owner or tenant to restore
a premises. The law provides that if the premises is
“untenantable” and “unfit for occupancy,” a tenant
must completely vacate in order to claim a right to a
rent abatement under Section 227.
“Note that generally the covenant to repair is
held to be independent of a tenant’s obligation to pay
rent,” Morfopoulos adds. “Thus, an owner is entitled
to payment of rent despite its breach of its covenant
to repair—unless an actual or constructive eviction
has occurred,” he emphasizes. And termination is an
extreme remedy that probably is unavailable—unless
the space is completely destroyed.
Leasing to Government Agencies
Q
A government agency has approached me about
leasing space in my office building. I am considering the idea, but I’ve heard that government agency
tenants have more specific requirements than typical
commercial property tenants. What criteria and costs
might be involved?
A
While leasing space to government agencies
can be a great opportunity because they have
more accountability and will, therefore, pay the rent
and uphold the lease terms, that may not matter if
expensive and inconvenient buildouts and strained
tenant relations outweigh the peace of mind that a
well-behaved, stable tenant brings.
Most of the issues with leasing to a government
agency stem from buildout requirements. Government agencies usually want specific, costly items
installed that will be useless to future tenants or could
permanently change or damage the space in such a
way that it would severely limit the types of future
tenants an owner could rent to.
For example, government agencies almost always
require some security buildouts. But extensive buildouts like bulletproof glass and soundproof walls are
time-consuming to install and can be very costly.
When the lease ends, the space will be useless to you
unless all of those items are removed and the space
is brought back to its original condition, and many
government agency tenants often make the owner
(continued on p. 6)
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6
C O M M E R C I A L L E A S E L A W i n si d er ® Q&A (continued from p. 5)
responsible for restoration costs in the lease. In fact,
the U.S. General Services Administration (GSA),
which is responsible for finding and leasing appropriate space on behalf of government agencies, uses
form leases that leave little room to negotiate.
Before you agree to have a government agency as
a tenant, consider how its presence will affect other
tenants. For example, law enforcement officers or
other government officials coming in and out of your
building with guns may not provide a comfortable
environment for other tenants.
Many owners have specifically avoided leasing to
government agencies. The GSA spent several years
scouting and signing leases for the 500 locations that
an estimated 1.2 million temporary employees of the
U.S. government will work out of to conduct the 2010
Census. Canvassing workers in 435 Congressional
districts will be supported by a Census coordinating organization working out of the carefully selected
and newly built-out offices across the country, which
were selected by the GSA and national real estate
advisory firm UGL Equis.
The criteria that were established by the Census Bureau and the GSA for each facility are precise
and eliminated many buildings from consideration.
The GSA established three basic space models for
the Census offices, ranging from 5,098 square feet to
6,479 square feet. Each location must meet numerous
construction criteria, be accessible 24 hours a day,
seven days a week, and have maneuverability for a
40-foot delivery truck as well as a loading dock and
freight elevator for deliveries.
The 50-member UGL Equis team had to find
owners that were willing to install a security system that will be centrally monitored by the government. Spaces also must have vestibules outfitted with
security glass monitoring windows, and be compliant with the Americans with Disabilities Act (ADA),
among other requirements. UGL Equis said that
some urban neighborhood owners were reluctant
to enter a short-term lease that required numerous
property improvements.
“We were asking owners to lease for a very short
period, 16 months to two years, while the norm for a
commercial lease is five to 10 years,” explained Paul
Michaelree, who supervised the UGL Equis effort
in the Dallas Region. The short-term leases required
April 2010
by the Census, coupled with the need for substantial
and disruptive tenant improvements, did not make
financial sense for many smaller real estate owners,
he said.
To encourage owners to enter into short-term
agreements, UGL Equis and GSA engineered an
accelerated tenant improvement (TI) amortization
option to owners, through which they would be reimbursed for the cost of the tenant buildout within
the first three months of the lease, allowing them to
secure more favorable borrowing terms from their
banks and mitigate their risk.
It’s important that you factor in any and all costs
that you think that you might incur when negotiating
the rent with the GSA. If you decide that you want to
rent to a government agency but are not sure that you
can afford to, ask whether options such as an accelerated TI amortization plan are available for you, especially if you are a small owner.
For more information, see “Leasing to Federal
Agencies: Is the Red Tape Worth the Greenbacks?” in
the June 2008 issue of the Insider, p. 6.
Calculating Square Footage Fairly
Q
I lease the second floor of my two-story commercial building to a dance studio. I would
like to include the stairs leading to the dance studio
in the square footage. Is it customary, or even legal,
to include stairs leading to a second story office or
retail property when calculating the square feet to be
leased? What if the stairs are the only access to the
leased area?
A
“Although it is legal, it is not customary to
include stairs when calculating square footage,”
says commercial real estate solo practitioner Mark
Morfopoulos. The standard “definitions” of floor
area do not include stair space; rather, stairs usually are seen as “common areas” because tenants are
given a nonexclusive license to use stairways in common with the owner and other tenants in the building
to enter and exit.
“If the stairs are part of the public areas of the
building, you will be hard-pressed to successfully
make an argument to include the stairs as part of the
leased floor space,” says Morfopoulos. “However, if
the stairs could be accessed only by a secured door
that only the tenant has a key for, the answer may
be different,” he adds. But even if the stairway is the
only access to a leased area, Morfopoulos points out
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April 2010
C O M M E R C I A L L E A S E L A W i n si d er ® that stairs shouldn’t be included in a space’s square
footage for the same reason that an elevator and its
surrounding area shouldn’t be included: They are
common areas.
If you decide to include stairs in a space’s square
footage, be prepared for a prospective tenant to
object if it thinks that it will be responsible for repair
and maintenance of the stairs even though it would be
unable to secure the area, or that including the stairs
7
may increase its proportionate share of common area
maintenance and real estate tax contributions.
Insider Source
Mark Morfopoulos, Esq.: Solo Practitioner; [email protected].
For more information, visit
www.commercialleaselawinsider.com
Search Our Web Site by Key Words: damage liability; government agency tenants; buildouts
recent court rulings
➤ City and Owner Share Maintenance
Duty for “Special Use” of Sidewalk
Facts: A pedestrian was injured when he fell through
a concrete-filled metal grate in a public sidewalk. The
grate covered a defunct stairwell to the basement of a
building on the property abutting the sidewalk. The
stairwell had been reconstructed with the grate by
the abutting property’s owner in 1968 in accordance
with city specifications. Before the reconstruction,
it had been installed solely for the abutting owner’s
convenience.
The pedestrian sued the abutting owner for negligence. The abutting owner asked the court for a judgment in its favor without a trial, arguing that because
the 1968 reconstruction had been completed in accordance with city specifications, the city was liable to
the pedestrian. The court ruled in favor of the abutting owner, concluding that, because the sidewalk
had been rebuilt by the abutting owner pursuant to
the city’s demands, the city, rather than the abutting
owner, owed a duty of care to pedestrians using the
sidewalk. The pedestrian appealed.
Decision: The appeals court reversed the lower court’s
ruling.
Reasoning: The issue in the case was whether a city,
an owner of property abutting a city sidewalk, or both
owe a duty of care to pedestrians for the maintenance
of a grate in a sidewalk covering a stairwell that had
been previously made for the benefit of the abutting
owner—when the city had mandated and directed the
reconstruction of the stairwell using the grate.
The appeals court noted that an owner of property
that abuts a public sidewalk owes a duty to pedestrians only when he creates or maintains an excavation,
such as the stairwell in this case, or other artificial
condition under the sidewalk that causes or contrib-
utes to an injury. This generally is known as the “special use doctrine.” Under the special use doctrine,
an abutting owner could be held liable if an injured
pedestrian showed that the sidewalk was constructed
in a special manner for the abutting owner’s benefit.
Here, the abutting owner’s stairwell specifically had
been constructed for his benefit to allow him to use
the sidewalk in a manner different from that of the
general public, making it a special use of the sidewalk.
The appeals court stated that an abutting owner
who makes special use of the sidewalk owes a duty to
maintain it in a “reasonably safe condition for pedestrians lawfully using it, and must exercise reasonable
care to guard the public from injury.” An abutting
owner who does not do so becomes liable to anyone
injured as a direct result of his negligence.
The appeals court stressed than an abutting owner’s liability for negligence is not affected by the fact
that the city where the property is located has a duty
to perform and may also be liable for injuries. The
appeals court agreed with the abutting owner here
that, as a result of the 1968 reconstruction of the
stairwell with the grate, the city also owed a duty of
care to pedestrians with respect to the grate because
it had expressly mandated it. However, the imposition of the duty on the city didn’t extinguish concurrent duties the abutting owner owed for his creation
or maintenance of the stairwell. In other words, the
abutting owner’s duty of care resulting from his special use of the sidewalk was not erased simply because
the city also was liable. Since the abutting owner’s
duty with respect to special uses is concurrent with,
not secondary to, any duties that may also be owed by
the city, the court ruled that the abutting owner here
was liable to the pedestrian for his injuries.
■
Locke v. Gellhaus, February 2010
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