An out-of-possession landlord is not responsible for dangerous conditions existing on leased premises after the tenant takes possession unless the landlord retains control of the property, affirmatively creates the condition, or contracts to maintain it. However, what about when the landlord reserves the right to enter onto and use the premises from time to time?
In Burgess v City of Glens Falls, a child fell through a missing bleacher plank at a field owned by the City of Glens Falls and leased to the Glens Falls Little League. While the lease gave the Little League exclusive right to operate the field to run its program, it also included a provision that allowed the City to request permission to use the field for certain scheduled events. The provision also gave the City the responsibility for any maintenance and repairs related to any such event. This right was exercised by the City from time to time, including ten months prior to the incident, when the City held an “Annual Summer Jam.”
The plaintiff contended that the City’s occasional use precluded a finding that it was an “out-of-possession” landlord. The Supreme Court disagreed and ruled finding the reservation to be analogous to a right to re-enter that does not impair the City’s status as an “out of possession” owner.
Thanks to Christopher Gioia for his contribution.