Recently, the New Jersey Supreme Court addressed the question of whether the owner of a commercial property owes a duty to clear snow and ice from a demised property to prevent harm to a tenant’s invitees in Shields v. Ramslee Motors, 240 N.J. 479 (2020). Landlords of commercial properties routinely include clauses delegating the responsibility for maintenance and repairs of the demised property to the tenant as part of a lease. The Court made a distinction with a landlord’s non-delegable duty to maintain the adjacent sidewalk to the property with a duty to maintain the demised property itself.
In Shields, the landlord leased the property to a used car dealership where the lease stated the tenant “shall maintain the leased premises” and that the tenant “shall be solely responsible for the maintenance and repair of the land” during the tenancy. The plaintiff in the underlying action delivered a package to the tenant and slipped on accumulated ice and snow in the tenant’s driveway. The tenant settled with plaintiff and was dismissed from the action; the landlord filed for summary judgment. Ultimately, the Court held that the lease created a clear responsibility for the maintenance of the private driveway of the property upon the tenant as the landlord did not retain control and vested ownership, making the tenant the de facto owner, of the property based upon the unambiguous language of the executed lease.
The Court agreed with the landlord’s argument finding that the executed lease specifically provides that “TENANT shall maintain the leased premises” which delegated the duty of snow and ice removal for the driveway to the tenant. The Court defined “maintain” which is “[t]o care for (property) for purposes of operation productivity or appearance; to engage in general repair and upkeep.” Additionally, the Court found that the landlord’s right of re-entry did not create a duty for the landlord to remove any snow and/or ice. While the Court previously found that a landlord possesses a non-delegable duty to maintain the sidewalk, that duty does not extend to the demised property’s the driveway. Moreover, the landlord granted the tenant with exclusive possession thereby making it “‘unfair’… to hold the landlord responsible for ‘a condition of disrepair over which it had relinquished access.’”
The Court addressed the idea of “control” to see if a different outcome would be reached when deciding the permissibility of delegating the removal of snow: The Court found no change in its analysis. The Court evaluated several factors and found that no relationship between the plaintiff and landlord existed; that it would be unfair to have an out-of-possession landlord responsible for the removal of transient weather build-up; and that no public policy interest is met by requiring the landlord to remove the snow and/or ice from a tenant controlled property.
From a defense prospective, Shields teaches us the following: first, that it is important for the leases for commercial properties to specifically address the responsibilities of the tenants regarding the maintenance and the upkeep to the demised property; and second, that the landlord is aware that issues with a demised property can be attributed to a landlord if the landlord maintains control, albeit the Court neglects to advise on the amount of control, over the demised property. Additionally, while Shields addresses only the distinction of liability between a landlord and tenant for the removal of snow and/or ice on the demised property, a court could easily apply the same analysis for any debris or defect on a demised property controlled and maintained by the tenant for tenant’s purposes.