By Matthew Petra

“Security is always excessive until it’s not enough.” Robbie Sinclair

Commercial leases usually address a wide array of topics, including unlikely occurrences. For example, most commercial leases that I’ve encountered have contained a section regarding eminent domain. This issue could, understandably, result in material changes to a landlord and its tenant, however unlikely. Similarly, a failure of security for third parties can lead to material changes to a landlord and its tenant. But, based on my observations, this equally (or more) probable event is often left unaddressed within a commercial lease. With that said, who is responsible for the security of third parties, the landlord, the tenant, both, or neither? As with most commercial tenancy topics, it’s a matter of the facts and circumstances; therefore, we must focus on the Florida case law.

“… the question for the court is whether the landlord exercised some control over the premises and public access to it. … If the landlord surrenders possession and control over the leased premises to the tenant, the landlord is not liable for injury to a third party that occurs on the premises. … The question of which party has the duty to provide security at the premises is one of fact – and for commercial leases silent on the issue the question generally turns on whether the landlord exercises control over the premises and public access to it. … If the landlord surrenders possession and control over the leased premises to the tenant, the landlord is not liable for injury to a third party on the premises. …” Jones v. Basha, Inc., 96 So.3d 915, 916-7 (Fla. 2d DCA 2011).

In the above-cited case, the court was concerned with whether or not the landlord exercised control over the leased premises and public access to it. For us, the first step is to look at the lease; but it’s often silent on that topic. Therefore, if the landlord “wipes its hands of” the leased premises, then it is the tenant’s duty to protect third parties, especially if those third parties are not agents of the landlord, but rather agents, guests, visitors, etc. of the tenant. In the Jones case, the court did not need to worry about the silence of the lease; instead, it was content to look at the fact pattern of control. In fact, the court found that even maintaining an insurance policy did not create liability for the landlord, because the policy itself did not establish landlord control over the leased premises or public access to it. Furthermore, the fact that the landlord kept in contact with the tenant was also seen as immaterial for landlord liability, because that contact was not meant to exercise control over the leased premises (or public access to it).

It’s crucial for both parties of a commercial lease to address security for third parties in the lease. If the landlord wants it to be a tenant’s obligation, then, as the tenant, make that a “bargaining chip.” Being responsible, and potentially liable, for security to third parties has some dollar amount associated with it, so this needs to be communicated when negotiating your lease. As a landlord, if the lease is silent, review your level of landlord control to determine exposure, and adjust accordingly. As with many other lease topics, when dealing with third party security, a careful review of your lease with your attorney is worth your while.