Commercial tenants could argue that "if you couldn't use your space 100 percent, you get a 100 percent rent abatement," though he said it is not clear how that argument would fare in court since no such cases have been resolved.
"I think that constructive eviction supersedes the lease," he said.
Assuming that the tenant does not claim constructive eviction, most commercial leases give the owner of a damaged property discretion to decide what to do with it. One common arrangement is for a tenant who wants to maintain a claim on an unusable space to pay $1 per month until the space is repaired, or until the landlord decides not to repair it and terminates the lease.
"The warranty of habitability does not apply to commercial tenants," Mollen said. "Commercial tenants may claim breach of their lease and that they were constructively evicted if a landlord intentionally failed to timely repair the premises. Commercial lease provisions usually spell out repair obligations and the parties remedies if repairs are not or cannot be made within a specified time frame."
Howard also said that some disputes have arisen when landlords have made repairs, but the tenants have alleged those repairs are inadequate.
Estis said that, like residential landlords, commercial landlords are trying to be accommodating, though within limits.
"What I'm finding is that most responsible and reputable landlords, to a certain degree, will try to help the tenant and be responsive, but it doesn't necessarily mean they're liable," he said.
"They might be willing to give certain concessions," he continued. "At times the landlord, because of the economic damages the tenant is suffering at the moment, might defer the current rent."
Bailey said that, with both residential and commercial leases, it's still too early to know what direction the cases will go, since they are still working their way through the courts.
The biggest surprise so far, he said, is that relatively few cases have been filed.
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John A. Viteritti
Very informative.
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