In short, no.
With commercial leases, the ideal for most landlords is to be able to shift liability to the tenant as soon as the lease is granted, often by using a full repairing and insuring lease.
However, it is worth bearing in mind that even a full repairing and insuring lease may not be as extensive as it sounds and will still not absolve a landlord for liability in certain situations.
Initially, it is worth looking at the lease itself – if the lease is for a part of the building then liability for the common parts will remain with the landlord, or where the lease is for the whole then the responsibility for insuring the building is still the landlord’s (even if the cost is passed to the tenant). Full repairing and insuring leases are often not as ‘full’ as they might seem at first glance.
Breach of planning control
As the owner of the land, even if a breach of planning control falls squarely on the shoulders of the tenant, a landlord is usually served with an enforcement notice. The notice will contain steps that need to be taken to rectify the situation and although these are directed at the tenant, the fine will be the landlord's if action isn’t taken and non-compliance penalties can be severe. The defence is for a landlord to show everything reasonably expected has been done to try and secure compliance – this could go as far as a landlord forfeiting a lease or obtaining an injunction against the tenant.
Occupier’s liability
While on the face of it, the occupier might appear to be the tenant, an occupier is defined as anyone who has a degree of control over premises and this will include a situation in which a landlord has retained responsibilities to common parts (but not to those areas leased). The Occupier’s Liability Acts 1957 and 1984 create a statutory duty to all those who enter the premises – both acts create a right to claim for death or personal injury and the 1957 act for property damage too.
The Defective Premises Act 1972
Where there is a residual liability to repair (for example common parts) a landlord owes a duty to all those who might be reasonably expected to be affected by defective premises to take care to ensure they are reasonably safe from personal injury or damage to their property. It is worth noting that even if a landlord is not obliged to carry out a repair under a lease, if he or she has a right to do so, the 1972 Act will deem it an obligation to repair. Most leases require a tenant to notify a landlord of a defect that might create liability under this legislation and if this isn’t done there may be an onward claim against a tenant.
Health and Safety legislation
If the landlord retains any degree of control over the premises, such as responsibility for common parts, or maintenance responsibilities with respect to plant or substance on the premises, then a responsibility is created to ensure premises are safe and without risks to health as a result of the Health and Safety at Work Act 1974. Failure to comply with this legislation can result in a criminal prosecution or an unlimited fine for a company.
This is a brief overview of the residual liability that may remain with a landlord even after a lease is granted – for more information please contact one of our commercial property team on 01616 966 229.