Daily Development for Wednesday, April 12, 1995

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

LANDLORD/TENANT; COMMERCIAL; TENANT'S DUTIES TO OTHER TENANTS' BUSINESS: A tenant has no duty to continue business practices that previously had supplied a gratuitous benefit to another tenant. Dunnick v. Elder, 882 P.2d 475 (Idaho Ct. App. 1994) Each tenant's lease contained a clause requiring that tenant do nothing injurious to the center or cause "unreasonable noise, odors, annoyance or nuisance which would be objectionable to other tenants. . ." But there was nothing specifically requiring tenants to protect one another's econmic interests. One tenant, the owner of a restaurant, closed its interior entrance, and thus substantially reduced traffic in front of the other tenant's shops. Held: No implied duty on part of restaurant tenant, and lease added no express duty.

Comment: What if (as might have been true here) the restaurant tenant had to obtain landlord's consent to close its interior entrance? Does the Landlord owe a duty of good faith and fair dealing to all tenants to withhold consent to one tenants' activities that might injure business for the rest? Maybe the shop owner sued the wrong party. For an interesting case holding that a landlord does have a duty to take contractual permitted actions to terminate tenant's behavior constituting a common law nuisance, see Klimkowski v. De La Torre, 857 P.2d 392 (Ariz. App. 1993). (Landlord liable for nuisance when it knew that month to month tenant was storing flammable materials unsafely and failed to terminate tenancy - materials caused a fire which damage neighbor and neighbor's property. Neighbor was also a tenant of landlord, but case does not appear to turn on that point.)

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