Expert: Jim Avancena, CPM - 1/17/2008

Question
Hi..my question is:  can you get out of a commercial lease?  Let me explain, we are a small retail business in Ohio.  We signed a 2 year lease 8/15/06 with a building owner (the lease is very basic in nature but says if we break, we are liable for paying the remainder, etc. etc. etc.  Back in August, 2007, the bulding sold to a new owner, who choose to rip the frontage off, replace the roof, remove all signage among other things.  Our lease states that he can do these things as long as they don't disrupt our day to day business.  Everyone thought we had closed and therefore from 9/07 through 12/07 we lost over $15,000 in sales compared to our first year.  We still have a roof that leaked and ruined ceiling tiles, no carpet where the extension was placed and unfinished around the new windows where cold air comes in.  Our back room flooded during re-construction and we were promised new carperting (still havene't seen).  We did finally get our sign turned back on.  We have documented everything from the first day to include the days we had to close because we either couldn't afford to heat the place cuz we had no front, or because we couldn't get inside because of the scaffolding.  I could give more details if necessary, however, I just need to know if we can get out of this lease due this kind of sales loss, among other things.  We have even taken pictures of things to back us up.  We were promised a rent reduction, then it taken back and told we were only going to get it if they tore up the parking lot (Thanksgiving weekend - biggest shopping time of year). We have lost sooo much money already and don't know if it's possible to fight this.  Thank you in advance for any advice you can give.

Answer
Lisa-
I am sorry for the nightmare you have been going through.

What you have described is a problem that is rather complicated to cure, but I believe it may be possible to come out OK after this situation.  I can't go into all the details of how to solve your problem, but I will try to tell you all you need to know to get started.   You are a wise woman. Very,very few people are smart enough to keep notes and records, not to mention photos.  Bravo!  You will
need them to "win".

I am not an attorney, however, in most every jurisdiction of the country, courts recognize the legal concept of "Constructive Eviction" and/or "Habitability".   Even if the words in the text of your
"basic" lease don't specifically mention these concepts, most judges and/or Landlord/Tenant courts accept these concepts as reasonable tests to determine if a tenant has the right to move out of their premises.

The general concept is that even if your lease doesn't say this; if your landlord doesn't do whatever is necessary to keep the store, office, apartment, or other structure that you rented in a condition that makes it useable for the purpose that you rented it, you can make a claim for "Constructive Eviction". Let me give you an example.

If you leased a store to sell a product and the roof was worn out, or damaged to the point where it got your products all wet, or no customers would shop in your store, you would have to report (and you would have to be capable of proving that your told your landlord about this problem - do you have a witness that you told him?) this problem clearly to your landlord.  If you did this and the
landlord didn't repair the roof right away (the judge will decide how much time he thinks is reasonable for the landlord to have it fixed after you notified your landlord - in some leases it actually specifies how many days a landlord has to get the damage repaired) and you can show with your pictures and notes that the story you are telling is true; you can tell the judge that you are claiming "Constructive Eviction", that is, that something bad was wrong with your premises (your store, office, or apartment, etc.) that was your landlords responsibility to fix, (if your lease says that it is your responsibility to repair any roof leaks you would be unable to claim this from a leak) and you can prove you told him about the damage, and show or prove that the problem continued, then you can move out and terminate your lease because it was impossible to keep doing business there and your landlord didn't repair what he was responsible for fixing.  In other words, What choice did you have? The landlord wouldn't fix the problem, and you couldn't do business, so you had to move out & terminate the lease.  

The idea is; you did all you could do, the landlord wouldn't do or repair what he was responsible to do or  repair, so you were,more or less, stuck with circumstances that constructed a situation where you were effectively evicted by the circumstances from your store, office, apartment, etc.

Did you understand that long convoluted explanation?

What you should do is try to find the office of the closest
Bar Association office in your area.  Call them, or go to their office and ask them is they have someone in the association that does "Pro Bono" legal work; that is free legal work for people that have a legal problem but don't have the money to pay for it.

If they have an attorney that will help you, tell them that someone told you that they believe you have a strong
"Constructive Eviction" case and you need someone to help you take the case to court.

The problem you have is that when you claim constructive eviction you must actually have moved out of the premises to get such a ruling in you favor.  You didn't actually move out.  There are other legal remedies available to you however.

Be certain that when you get a chance to talk with someone who can help you with your case, be certain to be organized about your names, dates, facts, evidence you have, etc. and have it organized so that the attorney will not become bogged down with simply organizing your case materials.  Create an accurate timeline of when things happened, who was involved, EXACTLY what was said, etc.

Don't try to do this on your own unless there is a small claims court & you are truly organized.  Note also that many cities and counties have what are called Landlord/Tenant courts where they often can provide you with an official that can help you present your case, or find an attorney to help you.  Your dispute is luckily the kind of case that law students can help you with because it is less complicated than other types of court room cases.  Volunteer law students are often available at the landlord tenant court building, or the small claims court building and offices.

To answer your over-riding question: yes, you may very well be able to get out of your lease because of all those things you mentioned, but you will need someone to help you prepare what is often a less complicated legal proceeding.

I hope I have helped you.  It sounds to me as if you have a landlord that is taking advantage of your lack of knowledge about lease law.  Good luck, and please write again if there is something else I can help you with.

Don't threaten your landlord, but don't be afraid.  Your records and the facts appear to put you in a good position to win your case.   If certain things occurred, and your attorney will ask you certain questions that will tell him about what I think also may be other claims to make against your landlord, you may even have a chance of getting some money back as well as getting out of your lease.

Best regards,

-Jim