Don’t Count on Your Out-of-Possession Status to Shield You From Premises Liability

Superior Skill, Superior Work Ethic, Superior Results

On October 24 of 2019, the State of New York Court of Appeals rendered a decision on Xiang Fu He v. Troon. It is vital for anyone who leases out commercial real estate to pay close attention to this verdict, which stated out-of-possession landlords could be held liable for slips and falls on icy sidewalks.

It is common for landlords to be “out-of-possession,” especially when leasing space to retailers. Legally, the term means you do not retain control of the premises or occupy it, and, unless the lease creates a contractual obligation, you’re not obligated to make repairs.

This definition can run afoul of local laws, as it did in the Xiang Fu He case. In 2003, Section 7-210 of the Administrative Code of the City of New York went into effect. 

The plain language of the code states:

  • It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.
  • Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair, or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt, or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.

In writing his opinion, Judge Rivera stated:

“Section 7-210 applies to every owner of real property abutting any sidewalk and makes no distinction for those who are out of possession. The fact that this section expressly excludes certain owner-occupied properties from its reach demonstrates that defendant’s reading is untenable because, if the City Council meant to exclude a class of owners, it knew how to do so.”

The judge also made it clear that under the law, snow and ice removal is a non-delegable duty.

“While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability, for injuries caused by negligent maintenance.”

In other words, you’re welcome to put a clause in your lease which shifts the work of sidewalk maintenance to your tenant, but if you do you’d best send someone out to inspect that work whenever snow and ice are an issue. While you may be able to take your tenant to court for breach of contract, you nevertheless will end up shouldering the liability for any accidents that occur. In many cases, you’ll be better served by taking care of the sidewalks yourself.

These decisions are backed by quite a bit of existing case law in which the out-of-possession status failed to shield landlords, including (but not limited to) the 2009 case James v. Blackmon, the 2009 case Litkenhaus v. 1158 Hylan Blvd., and the 2011 case Reyderman v. Meyer Bedford Trust. 

Thus, it’s unwise to rely on out-of-possession status alone when attempting to limit your liability. Instead, work closely with your attorney to identify any local laws which might impact a premises liability case, and take steps to reduce and control factors which could result in a lawsuit. 


Submit this form to have your case reviewed by our attorney.

Our Practice Areas
Meet Mr. Richman


Mr. Richman is the Managing Member and Founder of Richman Law Firm PLLC. In his role as Managing Member, Mr. Richman oversees the day-to-day operations of the firm and handles the litigation of the most complex legal matters across a vast array of practice areas and disciplines. ​

Our Reviews
Sasha Roudenko
Sasha Roudenko
15:31 15 Oct 19
Scott Richman took a painful and unpleasant experience and helped me navigate it while always being available to answer any questions or address any concerns whether it was via email or phone. He always took the time to explain everything including any areas of confusion without making me feel stupid or small. He was always respectful, very knowledgeable, and worked so hard on my case. I cannot recommend him highly enough for any legal needs you may have.
Erica Carter
Erica Carter
21:12 12 Sep 19
Scott Richman handled my case with the utmost care, respect, and expediently. I had a civil matter that he resolved for me, and leaving this matter in his hands was the best thing I could have done. He communicates effectively and often, and ensures that as his client you are never in the dark. Very grateful for his services and give him my highest recommendation.
Michael Feinberg
Michael Feinberg
15:04 08 Aug 19
Scott Richman is an extremely honest and professional attorney who helped settle my personal injury claim. His work is thorough and reliable. Additionally, Scott makes himself available for his clients and truly focuses on making sure that his clients needs are timely met.
kristen epifania
kristen epifania
20:31 31 Jul 19
Mr. Richman is a respected colleague with impressive experience in civil litigation. I have seen his work firsthand and he is a powerful advocate and extremely knowledgable in his field. I would trust him to handle my own matter and recommend him to anyone in need of a civil attorney.
Mehdi Essmidi
Mehdi Essmidi
20:45 25 Jul 19
Mr. Richman is one of the most capable civil litigators I have met. He conducts his practice fairly and ethically at all times. He always approaches each case with several strategies, he has no problem standing up for his client’s interests, and he uses his talent for quick thinking to resolve issues for his clients very efficiently. I have referred several clients to his firm because I trust that he will do excellent work for anyone that retains his services. I endorse this lawyer.
Robert Golden
Robert Golden
20:22 24 Jun 19
Mr. Richman did a wonderful job handling an estate issue for me and my family. It was frustrating at times do to attorney’s on the other side, but he persisted in a very professional manner and got the job done. Thank you.
KayBienne Rosado
KayBienne Rosado
16:14 24 Jun 19
Richman Law Firm PLLC is an amazing firm and worth working perusing is you need a lawyer. Scott Richman works hard and took care of everything quickly. He was easy to get a hold of, answering emails and phone calls immediately almost every time. He settled my case within a little over 8 weeks. He was in constant contact, keeping me up to date on the progress of my case. After settling my case, he reached out often to be sure I received my check and to confirm that all looked as promised per our contract. He answered every question, never making me feel stupid or small. He is a great guy to work with, very nice and very professional. Hire this firm, you won’t regret it.
Adam Hersh
Adam Hersh
17:17 21 Feb 19
I strongly endorse Scott. I have known Scott for years. I am an attorney in Florida, and whenever I have a client who needs legal representation in New York, my immediate thought is to call Scott. I have worked on several matters with Scott, and I am very impressed with his excellent work ethic and strong attention to detail. Scott makes sure to focus on the right issues to get the best outcomes for his clients. I strongly recommend Scott for those in need of a strong, aggressive attorney in New York.
Next Reviews