Do Your Leases Allow Response to Bird Flu, Other Health Epidemics?

Although the bird flu scare has faded from news headlines, the threat of a pandemic remains a real possibility. Human deaths from bird flu continue to be reported, including child deaths in April 2007 from Cambodia and Egypt. On April 17, 2007, the U.S. Food and Drug Administration announced that the threat of a bird-flu pandemic was “one of the most significant public health issues our nation and world faces,” and approved a bird flu vaccine as a temporary solution until more effective vaccines are developed.

Property owners and managers like you will need to create an emergency plan for dealing with a bird-flu or other health pandemic, if one strikes, to keep your tenants, employees, and visitors safe. However, if your leases are like many we have seen, they may hinder your ability to carry out your emergency plan. Why? Because your leases have a loophole that bars you from taking even the most basic precautionary steps—such as shutting down your building—if a pandemic strikes. If you can't take those precautionary steps, you may be unable to keep flu-infected people out of your building. Thus, the flu could end up spreading rapidly throughout your building.

Worse yet, if your lease doesn't give you the right to take precautionary steps to keep out or contain the bird flu, tenants could try blocking you from taking those steps, for fear that they could lose business. Thus, the tenant could retaliate by demanding a rent abatement, or sue you if it lost sales or clients because you took precautionary steps without the authority to do so.

How to Plug Loophole

To plug this loophole, add language to your leases that gives you the power to take the precautionary step of closing down your building in emergency situations, says Washington, D.C., attorney Tara K. Gorman. For example, state in the lease that you have the absolute right and power to either limit or bar access to your building when an “actual, suspected, or perceived” health or security threat arises, says Gorman. You should be the only one who has the power to determine whether a threat is actual, suspected, or perceived, she says. Otherwise, you would have to put up with tenants second-guessing your decision.

Gorman puts the following language in all her leases to ensure that her owner-clients get that absolute right. It covers not only health threats but also security threats because they can have severe consequences to your building, too, she says:

Model Lease Language

Landlord shall have the absolute right at all times, including an emergency situation, to limit, restrict, or prevent access to the Building in response to an actual, suspected, perceived, or publicly or privately announced health or security threat.

Will Tenants Balk?

Tenants may balk at giving you such an absolute right, because they don't want you shutting down the building if someone merely gets the sniffles. To ease their concerns, tell them you won't employ this absolute right on a whim—and, most likely, you will never have to employ it at all, says Gorman. After all, you are in the business of renting out space and making money. You can't do those things if the building is shut down.

Also, let the tenant know that your goal is always to provide tenants with a healthy and safe work environment. Should you need to resort to the above absolute right, it will be with that goal in mind. But not having the right to shut down the building if a pandemic strikes could have dire consequences for your tenants. Gorman says that tenants typically agree to include this clause in her leases because they realize the importance of controlling such emergency situations and keeping themselves safe.

Shared Responsibility for Safety

Be aware that most of the responsibility to keep tenants, their employees, and visitors safe rests upon the tenants themselves, says Gorman. Tenants are typically responsible for day-to-day cleaning of their spaces, even if you supply an outside party to do the cleaning work. That means tenants must do what is necessary to prevent the spread of germs to their employees and visitors, she adds. The tenants should not be pointing a finger at you to do such cleaning. Rather, you need to make sure they are aware of their role in minimizing the spread of a health epidemic throughout the building.

Also be aware that you are not entirely off the hook for keeping a building clean and safe. You will be responsible for cleaning the air-supply systems and complying with building code standards, says Gorman. However, many diseases don't spread through air systems but by human-to-human contact, she adds.

CLLI Source

Tara K. Gorman, Esq.: Greenberg Traurig, LLP, 800 Connecticut Ave. NW, Ste. 500, Washington, DC 20006; (202) 331-3100; gormant@gtlaw.com.