If I’ve been locked out of my business for 1 1/2 months due to a fire, does the landlord still have the right to collect rent?

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If I’ve been locked out of my business for 1 1/2 months due to a fire, does the landlord still have the right to collect rent?

My mom has a business in a mall. There was a small fire in one of the stores and the mall had to close for a week to repair the store. However the mall ended up closing for a month and a half to make repairs to bring the mall up to code. The problem is that those repairs were supposed to be done 2 years ago and were ignored by the malls landlord and managers. So once the repairs were done the mall has now re-opened but the landlord wants all the business owners to pay rent for for the time in which the mall was closed (by no fault of the tenants). Are we entitled to pay?

Asked on September 22, 2011 under Real Estate Law, Georgia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

No, the landlord should not be entitled to rent during the time that the premises was unusable and you were locked out:

1) It's a violation of the lease--you pay rent to get space. No space, no obligation to pay rent.

2) It's a violation of the implied warranty of habitability--all premises are required to be fit for their intended purpose. If a premises is not usuable, a rent abatement is appropriate; if the tenant cannot use the space at all, total abatement (no rent) for that time is appropriate.

3) When contracts--and that's what leases are--cannot be performed for reasons beyond the parties' control, they are considered "impossible." That can result in voiding  the whole contract, or in a case like, at least suspending it during the period of impossibility.


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