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Landlord charging tenant for Commercial plowing

I rent a commercial space with a shared building by one other business/tenant (who happens to be the landlord) and a shared parking lot/driveway by another tenant (but they are in a separate building).

The landlord had me sign a provision in my lease to agree to pay for 50% of the plowing. I fought her down to agree to 1/3, since there are THREE tenants using the plowable space. She had originally argued that the third tenant does not pay for plowing so it would have to be split with her (landlord) 50/50, but I argued that why should I pick up their slack? So I got my 1/3 - 2/3 split.

The plowing costs have been astronomical, $175/visit, and they come 2, 3, 4, times a storm! I just can't afford this, on top of my rent and other costs, so I looked into the law and while digging found this:

"It depends on your particular property. Landlords have the primary responsibility for snow removal at a rental property. Under the State Sanitary Code, property owners/landlords must keep all means of egress free from obstruction — that cannot be negotiated away. As for the removal of snow and ice, the Code provides that the landlord shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice. Again, those obligations cannot be negotiated away.

A landlord may require the tenant be responsible for snow and ice remove in a lease provision only where a dwelling has an independent means of egress, not shared with other occupants, and a written lease provides for same. On its face, this exception only applies to entrance-ways and not driveways or parking areas. I am not aware of a court ruling on this particular Code provision, but if I were a landlord I would not risk being on the wrong side of a “test case” where someone is injured badly.

So, in the example above with an owner occupied two family with one common entrance and driveway, that lease provision would be illegal."

So is my lease provision illegal??

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Submitted Sun, 03/19/2017 - 10:27

Dear Commercial Tenant,

The state sanitary code applies to housing. It is officially titled "Minimum Standards of Fitness for Human Habitation (State Sanitary Code, Chapter II)".

The state sanitary code does not apply to commercial properties.

Commercial landlords do have a duty exercise reasonable care to correct unsafe conditions described in a written notice sent by certified mail from a tenant.

However, what you are describing is something different.

In my view, most courts would consider the allocation of plowing costs between a commercial landlord and commercial tenant to be subject to negotiation between the parties.

For more information, you may wish to read my article Commercial Tenants' Rights And Remedies In Massachusetts.

Yours truly,

Robert Nislick
Attorney At Law
P.O. Box 5207
Framingham, MA 01701
(508) 405-1238

Submitted Mon, 03/20/2017 - 10:53

The information you found is very clear that it applies to "dwellings" meaning residential property only. The sanitary code deals with buildings for "habitation" or living in, not buildings for commercial use. When it comes to commercial leases, landlords and tenants are free to basically agree to whatever they want for the space, there are almost no illegal provisions. Your clause that says that you have to split the costs of towing with the landlord 1/3-2/3 is a perfectly legal clause for a commercial space.

Now, in any commercial contract, there is an implied covenant of good faith and fair dealing. You state that the costs are "astronomical" but unless they are vastly different from what another company would charge to do the same service, they are not necessarily unreasonable. Unless you have another option, which is significantly cheaper to hold up to the landlord, you are probably just out of luck here. Your provision is legal and enforceable, and the landlord has freedom to choose a company as long as it is commercially reasonable.

Atty. David Owens

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