March 01, 2003

Does a Shopping Center Landlord Have an Implied Operating Duty? (2003, 17:02)

Does a Shopping Center Landlord Have an Implied Operating Duty?

By Patrick A. Randolph Jr.

Probate and Property, March/April 2003, Volume 17, Number 2

All leases create relationships, and the parties to a lease often spell out their expectations for the relationship in the documents. But, as with personal relationships, lease relationships often involve unstated expectations as well. The tenant, for instance, is viewed as having the implied responsibility to avoid injury to or alteration of the leased premises (waste) during the tenant’s possession. Landlords are said to warrant “quiet enjoyment” implicitly; that is, they must protect the legal right to possession transferred by the lease. These implied terms represent the court’s view of what the parties probably had in mind when they used the term “lease” to describe the relationship they created. Such implied duties often are not stated in the instruments creating the relationship, although some can be modified by those instruments. But if the parties do not expressly reject them (and sometimes even if they do), they necessarily are part of the deal.

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