Landlords: Beware of
Boilerplate
When an injury occurs on a portion of the
premises or because of an instrumentality exclusively under the control of
the tenant, the landlord is not liable since he exercises no measure of
control over the area or the instrumentality. If, however, the tenant does
not have exclusive control over the area, the question arises as to
whether the landlord retained sufficient control to create a duty on his
part to exercise due care in maintaining the area.
In a case decided during 2006 by the
Colorado Court of Appeals, the lease under which the parties operated
contained some standard provisions that are fairly common: (1) allowed the
landlord, in emergencies and otherwise upon giving advance notice to the
tenant, the right to enter the property to inspect for damage and to make
necessary repairs or improvements; (2) prohibited the tenant from making any
alterations, installations or repairs without the landlord’s written
permission; (3) required the tenant to notify the landlord of any required
maintenance and repairs; and (4) made the landlord responsible for making
repairs within a reasonable time after being notified of the need for
repairs.
In determining whether the landlord
retained sufficient control over the premises to be held liable for death
and injuries to the tenants caused by carbon monoxide poisoning from a
faulty gas appliance, the Court of Appeals concluded that the provisions of
the lease supported the conclusion that the landlord retained control of the
premises because (1) the tenants had surrendered their right to exclusive
possession and control over the property in such a way as to share control
with the landlord, and (2) the landlord had reserved the power or authority
to manage, superintend, direct or oversee repairs on the premises.
