Expert: Morgan Smith - 7/22/2011

Question
Commercial Property in OH flooded with sewage within 3 weeks of lease start.  Contract states Landlord responsible for timely repairs but not liable for damage to business assets.  Plumber advised there was a problem with underground lines, snaked, and did not return.  Flooded 6 more times over next 11 months with $$$ damage and no action on part of landlord (have excellent documentation).  The final flood left us ankle deep in sewage water with everything that goes into a toilet floating around our shoes.  Took us 3 days to clean it up.  Landlord said not his responsiblity to clean up, didn't think he would be able to prevent in future, advised us to move out if we were unhappy.  Next day I advised him we would take him up on that and be out by 15th (2 weeks).  He withheld security deposit (we paid in full, up to move out day).  We made 3k in improvements to facility, which we had no choice but to leave behind (walls, carpet, paint, repairs, etc.)

1.  Is landlord responsible for sewage flooding cleanup if so do we have a shot at recovering cost of time lost, cleaning materials, etc.
2.  I am confident (we have before and after improvement photos as well as photos just before we closed the door for the last time) he cannot claim damage, but he's citing the 2 weeks notice as basis for withholding.  Do we have a shot at recovering the deposit?
3.  Because he failed to repair in a timely manner, do we have a shot at recouping some of investment and or damaged equipment?  Or cost of having to rush to the studio whenever it rained to deal with flooding or potential of flooding?

Answer
Dear Jen,

Before I respond further to your question, I must make clear that I do not represent you, and cannot give you individual particularized legal advice. No attorney client relationship is created by this email. For legal advice, you should hire your own attorney, and follow their advice. My role with AllExperts is limited to providing general information and suggestions for educational or general knowledge purposes.

Before you take any action, consult with your own attorney. Speak to an attorney licensed to practice law in your state about the strengths, weaknesses, and likely outcomes of any contemplated cause of action or defense.

Your question is about breach of contract (the lease), and your remedies as a tenant for a landlord's breach(es).

In my opinion 1. the landlord would probably be liable for "cleanup" to the extent is would be considered by the court to be "repairs" consistent with the contract to restore the space to the condition it was at commencement of the lease; 2. you would probably recover some or all of your deposit notwithstanding your presumably contractually insufficient notice because of the emergency conditions created by the landlord's prior breach; and 3. I doubt you would recover anything for your improvements or equipment given your representation that the contract provides that the landlord is "not liable for damage to business assets", but you might get incidental, consequential and/or other types of damages from the landlord's breach.

My suggestion is that, after you and your attorney check the statutes and case law for your state, you race to the courthouse and file your suit and do your very best to get some recovery from your dreadful experience.

I hope this helps, good luck to you.

Morgan Smith
SMITH & RAVER LLP
Minneapolis, Minnesota
smith-and-raver-llp.biz
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