In premises liability cases, property owners often assert what is referred to as the “landlord out of possession” defense. In essence, this defense boils down to an assertion that the property owner does not reside or operate a business at the subject property and therefore cannot be held responsible for an injury resulting from a defective condition that exists on the property.
Pennsylvania courts have carved out multiple exceptions to this general rule. In Jones v. Levin, 940 A.2d 451 (Pa. Super. 2007), the court stated that a landlord out of possession may be held liable for a defective condition under the following circumstances:
(1) if he has reserved control over a defective portion of the premises;
(2) if the premises is so dangerously constructed that it is a nuisance per se;
(3) if he has knowledge of a dangerous condition at the time of transferring possession and fails to disclose this condition;
(4) if he leases the property for a purpose involving admission to the public and he fails to inspect for and repair dangerous conditions existing prior to transfer; or
(5) if he undertakes to repair the premises and negligently makes the repairs.
Often times a landlord out of possession will attempt to rely upon a lease term indicating that the tenant was responsible for all repairs in support of their assertion that they had no control over the premises. However, in Jones, supra, the court determined that such a provision was insufficient to establish a lack of control where the tenant was required to obtain the landlord’s consent before making any repairs. Lease terms requiring landlord consent for repairs and alterations are relatively common in commercial leases and may help overcome a landlord out of possession defense.
