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Hi
In May this year, I entered into a commercial lease for a house I own. The
tenant is a non-profit orginization that works with local doctors and law
enforcement agencies to help abused children. Their main source of funding
is the county government.
Like I said the lease was signed in May, now I recieve a letter from the
county's attorney saying that the city code officer has found things with
the house that have to be corrected because we are changing the premises
from a residence to a commercial building. The worst of these is handicapp
access to the 2nd floor.
I feel my lease covers me from making the modifications. It states that the
"tenant shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the Federal, State and Local
Governments..."
However they say I am required to have a "warranty of habitability" which
requires me to meet all codes.
This property is in Upstate NY, Warren County.
Anyone have any advice? I know this is very broad and without much info. I
cannot find this "warranty" clause in my lease. I have spoken to my
attorney who wrote the lease, he says it is not cut and dry and may have to
goto litigation, which I cannot afford.
Thanks for your time.
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Jeff Guay wrote:
In May this year, I entered into a commercial lease for a house
I own. The tenant is a non-profit orginization that works with
local doctors and law enforcement agencies to help abused
children. Their main source of funding is the county government.
Like I said the lease was signed in May, now I recieve a letter
from the county's attorney saying that the city code officer has
found things with the house that have to be corrected because we
are changing the premises from a residence to a commercial
building.
The worst of these is handicapp access to the 2nd floor.
I feel my lease covers me from making the modifications. It
states that the "tenant shall promptly execute and comply with
all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and Local Governments..."
That may not be specific enough to require the tenant to perform
obligations of the landlord if there is a statute or ordinance that
requires the landlord to do something. Check with a local real estate
lawyer to determine the effect of that clause.
You are probably required to do the work. The question in my mind is
whether the tenant is required to pay you back.
However they say I am required to have a "warranty of habitability"
which requires me to meet all codes.
Now, this seems to me to be wrong. I don't practice in NY, but in
California warranty of hability only applies to residential leases,
not commercial leases. If the rule is the same in NY, they shouldn't
be able to require you to comply with a residential landlord's
responsibility as a prerequisite to allowing you to be a commercial
landlord.
I have spoken to my attorney who wrote the lease, he says it is
not cut and dry and may have to goto litigation, which I cannot
afford.
Sounds to me like you need a better lawyer. If he knew you were
converting residential property for commercial use, I would think he
should have been aware of the problems that would arise, and include a
more specific clause in the lease to protect you. The clause he
drafted is not very helpful under the circumstances.
Stu
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Hi
In May this year, I entered into a commercial lease for a house I own. The
tenant is a non-profit orginization that works with local doctors and law
enforcement agencies to help abused children. Their main source of funding
is the county government.
Like I said the lease was signed in May, now I recieve a letter from the
county's attorney saying that the city code officer has found things with
the house that have to be corrected because we are changing the premises
from a residence to a commercial building. The worst of these is handicapp
access to the 2nd floor.
I feel my lease covers me from making the modifications. It states that the
"tenant shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the Federal, State and Local
Governments..."
However they say I am required to have a "warranty of habitability" which
requires me to meet all codes.
This property is in Upstate NY, Warren County.
Anyone have any advice? I know this is very broad and without much info. I
cannot find this "warranty" clause in my lease. I have spoken to my
attorney who wrote the lease, he says it is not cut and dry and may have to
goto litigation, which I cannot afford.
Thanks for your time.
So, you want to hear an answer that will solve your problem without
costing thousands of dollars in litigation, and without giving in to
the other side?
Needless to say, that's impossible. The only way to challenge the
county is to fight them, and to fight them you need money. If you have
no money, give up and work with them to find common ground. What
choice do you have?
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Hi
In May this year, I entered into a commercial lease for a house I own. The
tenant is a non-profit orginization that works with local doctors and law
enforcement agencies to help abused children. Their main source of funding
is the county government.
Like I said the lease was signed in May, now I recieve a letter from the
county's attorney saying that the city code officer has found things with
the house that have to be corrected because we are changing the premises
from a residence to a commercial building. The worst of these is handicapp
access to the 2nd floor.
I feel my lease covers me from making the modifications. It states that the
"tenant shall promptly execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the Federal, State and Local
Governments..."
However they say I am required to have a "warranty of habitability" which
requires me to meet all codes.
This property is in Upstate NY, Warren County.
Anyone have any advice? I know this is very broad and without much info. I
cannot find this "warranty" clause in my lease. I have spoken to my
attorney who wrote the lease, he says it is not cut and dry and may have to
goto litigation, which I cannot afford.
Thanks for your time.
I am not a lawyer. But let me play with this one.
If someone told me I had a responsibility as a landlord to provide a
"warranty of inhabitability," My initial response would be that they
are not inhabiting the house if the county considers the use
commercial. You "inhabit" a residence. You "occupy" a commercial
property.
A boilerplate residential lease that talks about ""tenant [compliance]
with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and Local Governments..." probably
wouldn't apply to the structure. That would be more like not selling
dope out of the house or other activities that the government would
regulate.
How long is the lease? Maybe your attorney can ask the county for a
waiver if you agree to correct the issues with a specified period of
time. "Correcting" the problem may be as simple as not renewing the
lease for any commercial use, and keeping it residential.
If your lawyer is right and it isn't really clear, some negotiating
may be in order. If you can't agree, then perhaps there is grounds to
terminate the lease.
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Jeff Guay wrote:
[leased residence to a non-profit commercial enterprise. Now tenant
demands improvements to meet ADA type regs]
"
However they say I am required to have a "warranty of habitability" which
requires me to meet all codes.
This property is in Upstate NY, Warren County.
Anyone have any advice? I know this is very broad and without much info. I
cannot find this "warranty" clause in my lease. I have spoken to my
attorney who wrote the lease, he says it is not cut and dry and may have to
goto litigation, which I cannot afford.
Thanks for your time.
The warranty of habitability isn't in your lease. It's in the law of all
landlord / tenant arrangements. As a landlord, you must provide a
tenant with a liveable premises. For example, you must have a working
bathroom.
The entire business is quite fuzzy in your case. The implied warranty
is, AFAIK, only applicable to a residential premises. Now you say your
tenant is commercial which may let you off the hook. OTOH, the premises
is residential in nature BUT the only reason the ADA issue came up is
because it's now occupied by a commerical type tenant.
So you see the law doesn't really cover your situation clearly. Also
there may be some details which you didn't post and for that matter case
law I don't know, which would swing the scales of 'justice' for or
against you.
Based only on what you post, I'd say you'd win in court because the
improvements demanded by the tenant here are not, IMO, covered under the
implied warranty of habitability because they only apply to
residentials. Again, IMO, since the implied warranty isn't bearing, then
the lease where the tenant must make his own improvements applies.
The problem is that my opinion, even magnfied a billion times, won't
prevent your tenant from taking you to court - even assuming that the
court would find for you. The only thing you can do is to move for fees
(the tenant pays your legal fees when he loses) and hope for the best.
Getting fees from such a non-profit would be unusual as it's unusual to
get fees in general. If the judges were to generally rule that loser
pays winner's legal fees, then there would be a decrease in the number
of lawsuits files. Since lawsuits are the courts' bread and butter,
there is the implicit conspiricy to keep the number high as none of the
professionals gain by a decrease in filings. That latter is my personal
opinion and I doubt it's shared by others in this forum.
The only alternative I can come up with is to examine the lease very
carefully to see if you can find the tenant is in violation of
something. If so, use that excuse to get rid of this tenant and count
yourself having had a cheap lesson.
-paul
ianal
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