Reopening Commercial Buildings: Guidelines and Legal Duties

by Shawn M. Kent

Landlords and property managers have massive amounts of guidance materials available to them as they prepare to reopen their properties. These materials detail many different things a property owner can do.  In the face of this, the question being asked by many owners is: what are they actually required to do, what is their legal duty?  Unfortunately, the answer is both fact- and circumstance-specific, taking into account the property and its users, as well as federal, state and local requirements. But landlords and property managers should always be cautious about measures they commit to implement because commitments that exceed the minimum required by the circumstances can, if not implemented fully, expose them to liability.

As landlords and property managers prepare to reopen their commercial, retail, and office buildings, they have available to them a wide variety of guides and resources.  There is no shortage of these materials, which are being prepared and provided by commercial real estate trade groups and the large brokerage/property management companies, as well as all manner of law firms and other professional advisors.  As with much of the information that has circulated during the pandemic, available information has been packaged and repackaged, and pushed out in great volume.  Many people have described taking it as “drinking from a firehose.”  This makes sense — advisors want to be helpful to their clients and position themselves as experts to the public and prospective clients.

These materials offer detailed guidance on a wide variety of steps that can be taken to both make buildings safer and to make tenants and other users comfortable in returning to these spaces.  They provide thoughtful advice, recommendations, and practical checklists.  The guides include communications and management advice; social distancing, cleaning and disinfecting protocols; and guidance specific to different areas and elements of each property. Altogether, it is an impressive set of resources.

It is clear from reviewing these materials that there is a lot that landlords and property managers can do.  That there is always one more thing that can be done.    The practical question that these materials beg however is:  what does a landlord and property manager need to do in order to protect themselves from claims and liability?   What is required?  What is my duty as a landlord or property manager, and what is the standard of care? The materials are much more tight-lipped on this issue, in many ways the crucial, practical and bottom-line issue on the minds of landlords and property managers.

At least one of the trade groups has recognized the issue in their materials, declaring that “[t]his Guide or any part thereof does not, and is not intended to, create a standard of care for any real estate professional or property manager” and “is not meant to advocate, promote or suggest any preferred method or methods for dealing with a Pandemic.”  Additional comments beg the question: “Users should seek advice from a qualified professional before applying any information contained in this Guide to their own particular circumstances.  Users should always obtain appropriate professional advice on… legal issues.”  The concern is the liability exposure created if landlords have a duty to do all of these things, and the standard of care is compliance with these exhaustive guidelines.

The answer, unfortunately, is that it depends on the specific circumstances.  Most leases do not have provisions which clearly define or disclaim duties in connection with this pandemic.  This leaves the matter open to argument, and the various guidelines and industry resources can be part of that argument.  Establishing the existence of a legal duty and the applicable standard of care is key to a successful claim. For a tort claim of negligence against a landlord, a plaintiff will need to prove the landlord owed a duty to the plaintiff, the landlord breached the standard of care applicable to that duty, plaintiff suffered an injury, and the landlord’s breach of the standard of care was the proximate cause of that injury.

What is the standard of care?  California Civil Code 1714 (a) states that “everyone is responsible… for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…” The courts have held that this duty of care espoused in Section 1714 applies to possessors of land for injuries to people on their premises (see Rowland v. Christian (1968) 69 Cal.2d 108, 119) and that a landlord owes a tenant the same duty of reasonable care in providing and maintaining a leased premises. (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467.)  Under these cases, any departure from that standard will be analyzed by balancing various factors, including the foreseeability of the harm, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty and liability and the availability of insurance for the risk involved.

The take-away from all of this for landlords and property managers is: be careful in taking on duties. The existence of a duty does not have a single, objective standard, and therefore landlords and property managers should be careful in defining and assuming these duties by, among other things, agreeing to perform certain tasks or assuming responsibility for obligations that they may not otherwise be responsible for.  If a duty is taken on, be sure that it is performed to the standard of care.  In other words, if you’re going to agree to do something, you need to actually do it; failing to complete that which you have agreed to do is prime fodder for a claim of negligence.

Landlords should also be mindful of their resources outside of the lease.  This can include reviewing available insurance coverage and other risk management tools to mitigate liability exposure, as well as revising leases as appropriate to clarify and define landlord’s duties going forward.  The current circumstances were difficult to predict, but a diligent landlord can minimize future issues by targeting the concerns raised and addressing them for future leases.