[RPPTL LandTen] Commercial Lease Question - Maintenance vs. Ordinary Wear and Tear

[Brenda Ezell]

Good afternoon all:

My client is a tenant in an office building and the windows have become cloudy due to "blown out gas" and need replacement.  The landlord is insisting it is a tenant obligation and tenant disagrees. Obviously the lease is silent on this except the following two provisions:


"REPAIRS: Lessee shall, during the term of this Lease, at Lessee's expense, keep the Premises in as good order, condition and repair as they were at the time Lessee took possession of the same, reasonable wear and tear and insured damage from fire and other casualties excepted."



The tenant believes this occurrence is resulting from reasonable wear and tear.  There is no express maintenance obligation (structural or otherwise) placed on the landlord, however the landlord is collecting operating expenses.  Here is summarized excerpt from the OPEX provision:


"The term "Operating Expenses" shall mean and include all expenses incurred with respect to the maintenance and operation of the Property and Office Complex as determined by Lessor's accountant in accordance with generally accepted accounting principles consistently followed, including but not limited to, insurance premiums, maintenance and repair costs, steam, electricity (except for electricity which is separately metered as provided in Article XIX hereof) water, sewer, gas and other utility charges, lighting, window washing... all  services, supplies, repairs, replacements or other expenses for maintaining and operating the Office Complex......"

Finally, there is this provision:

"ALTERATIONS AND IMPROVEMENTS: Lessee shall maintain Premises and every part thereof in good repair and condition, damages by causes beyond the control of Lessee, reasonable use, ordinary decay and wear and tear excepted."

Has anyone seen any cases involving this particular issue or have any input on how this might be decided?  FYI - I didn't draft this lease. :)

Thank you!

Brenda

Best regards,

Brenda B. Ezell, B.C.S.

[BCS]

[cid:image004.png at 01D46554.0BBE5BF0]
3560 Cardinal Point Drive, Suite 202
Jacksonville, FL 32257
904.432.3200 (o)
904-432-3201 (f)
www.ezellfirmpa.com<http://www.ezellfirmpa.com/>

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