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Control of Common Areas

By John G. Kelly

Commercial tenants have a strong interest in the landlord properly maintaining the areas outside of their premises that they share with the other tenants of the property. These areas are typically referred to as “common areas,” and are important in both an office and a retail environment. In an office building, common areas typically include lobbies, restrooms, parking areas and elevators. Many Class A office buildings also offer a fitness facility and meeting rooms to be shared in common by all of the tenants. In retail shopping centers, common areas include the always-critical parking spaces, but also might include landscaping, driveways, sidewalks and signage.

For many office buildings and shopping centers, the heating and air conditioning systems are also common facilities shared by more than one tenant. The duty of the landlord to maintain such common areas, along with the landlord's right to change their configuration, depends primarily on the language of their negotiated lease agreement but also on the common law principles of quiet enjoyment and constructive eviction. This article presents a brief primer on the current state of the always evolving common law of quiet enjoyment and constructive eviction, and then offers suggested lease language to avoid unnecessary confusion.

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