Heat Requirements in Commercial Leases

May 25, 2018 | By Charles Botensten

Q: am a licensed real estate salesperson and I am representing a tenant who is considering leasing a commercial office space.  The owner is insisting that the tenant be responsible for supplying heat to the office space and maintaining the HVAC system.  Is there a legal requirement in New York City that an owner supply heat to a commercial office space?

A: No, unlike for residential tenants, New York City does not guarantee commercial tenants that heating will be provided at any specific time. In every residential lease there is an implied warranty of habitability that requires landlords to ensure the space is safe and livable at all times. With regards to heating, the warranty of habitability is reflected in parts of the New York State Multiple Dwelling Law and the New York City Housing Maintenance Code. [See the previous REBNY Question of the Week on Obligations of Landlords to Supply Heat and Hot Water for a further discussion of when landlords must supply heat in residential buildings.] There is no similar protection for commercial tenants. Rather, any services, including heat, which a landlord will provide must specifically be stated in the lease. By way of example, depending on the landlord, unless otherwise deleted or modified, the REBNY preprinted form provides for heat to be supplied Monday through Friday from 8:00 a.m. until 6:00 p.m. (with some buildings providing heat on Saturday as well from 8:00 a.m. until 1:00 p.m. and others providing for air-conditioning in season).   Accordingly, unless some variation of the foregoing is indicated in the lease, if a tenant would like a landlord to supply heating (or cooling) at any specific times, they must negotiate this in the lease. Otherwise, a landlord is under no obligation to provide such services. The lease should also stipulate which party is responsible for maintaining, repairing and replacing the HVAC system if necessary (or alternatively, how such responsibility is divided, e.g., maintenance and repair by tenant and major components and replacement by landlord).

The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel

Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP