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Should Have Been Squeaky Wheel About Leaky Roof
by Ron Davis

A tenant's failure to file a timely formal complaint about a leaky roof at his North Carolina shopping center store has worked in favor of the center's owner.

The shopping center, located in Wilmington, had leased space to the tenant under a four-year contract for the operation of an office-supply business, and the leaky roof had been a problem since before he moved in. The owner of the shopping center apparently knew about the roof leakage prior to leasing to the tenant and had hired a roofing company at various times to make repairs.

But the center's owner did not advise the tenant of the leaks, nor did the tenant inquire about any leakage problems or make any inspections of the building before opening for business.

As for the lease, it merely stated that the center's owner was required "to make all necessary repairs to the premises, including the roof of the building situated thereon, as may be necessary or required to maintain the building in the condition in which the same existed at the beginning of the lease."

The lease also gave the tenant the right to terminate his tenancy "if at any time [he] is prevented from the full use and benefit and enjoyment of the building."

Despite suffering damage to his merchandise as a result of the leaky roof, however, the tenant never notified the center's owner in writing of any repairs needed. Instead, he simply telephoned his complaints (leaving messages on most occasions) and mentioned the problem during informal talks with the center's representatives.

After dealing with the leaky roof for three years and eight months, the tenant closed his store and moved out. He also refused to pay any additional rent, claiming that the roof problem denied him the full use and enjoyment of the premises.

In response, the shopping center owner sued for breach of contract to recover the four rental payments (totaling $10,018) remaining under the four-year lease.

In ruling in favor of the shopping center owner, a North Carolina appellate court explained, "The fact that the tenant remained in the building for three years and eight months despite his claim that the building leaked immediately after he took possession is competent evidence that he was not prevented from the full use and enjoyment of the building.... There is also competent evidence to support the conclusion of law that the tenant breached the lease by vacating the premises prior to the date of expiration." (K&S Enterprises v. Kennedy Office Supply, 520 S.E.2d 122 [N.C. App.1999])



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