By Matthew Petra

“Nobody can really guarantee the future. The best we can do is size up the chances, calculate the risks involved, estimate our ability to deal with them and then make our plans with confidence.”Henry Ford II

And, in the world of commercial leases, you can also shift the risk. Pursuant to Florida law, a commercial tenant, by default, carries the risk of loss in the event of casualty. That is, a loss that is not caused by the landlord.

“… it is generally held that in the absence of a special agreement to repair, the landlord is not under such a duty … In 1925, in the case of Plate Glass Underwriters’ Mut. Ins. Co. v. Ridgewood R. Co., 1925, 219 Mo. App. 186, 269 S.W. 659, in a case of inevitable accident, the court said: ‘Now, no matter if the above language may seem to imply that since lessee is not obligated to repair damage by windstorm the landlord is so obligated, yet, under the law of landlord and tenant, this, of itself, is not sufficient to bind the landlord to do so. For, under that law, a landlord is not obligated or bound to repair unless he has expressly agreed to do so …” Fischer v. Collier, 143 So. 2d 710, 712-3 (Fla. Dist. Ct. App. 1962).

                As a prospective tenant, you should be aware of what the proposed lease says about casualty. In some instances, depending upon the duration of a tenancy and the level of control that is exercised by a tenant, it makes sense for a tenant to carry the risk of loss in the event of (certain) casualty. If you, as the proposed tenant, will have very limited control over the premises, then, all things being equal, you should avoid the risk of loss in the event of casualty, unless it was caused by you or uniquely within your control. With that said, it is important that you, as a prospective tenant, assume that risk willingly. Ideally, the proposed lease addresses the topic with sufficient clarity.