Injuries suffered on leased premises present certain difficulties for plaintiffs. “The law is clear that a landlord out of possession is generally not liable for bodily harm sustained on his property by his tenant and those on the premises under his tenant’s right when he is entirely out of possession and control. Craig v. Ryan, 191 A.2d 711, 713 (Pa. Super. 1963)(emphasis added).

Whether a landlord is out of possession or in possession is a fact specific issue. For example, one factor is whether the landlord makes repairs to the property. See Henze v. Texaco, Inc., 508 A.2d 1200 (Pa. Super. 1986); Pierce v. Philadelphia Housing Authority, 486 A.2d 1004, 1005, (Pa. Super. 1985). In Pierce, the fact that PHA took care of maintenance and collecting rent created an inference not only of possession and/or control by PHA, but also of responsibility to keep the stairways of the property in good repair.

In all of the cases where the court has determined that the landlord was “out of possession”, there was a lease between the parties. The Superior Court likens a lease to a sale, with responsibility for defects passing to the tenant unless otherwise provided for in lease. Kobylinski v. Hipps, 519 A.2d 488 (Pa. Super. 1986). Where a contract is silent as to the subject of maintenance of the leased premises, and where the defendant performed needed maintenance during the period of the lease, there arises a “necessary implication” that the defendant had a duty to maintain the premises in good repair and reasonably safe for use by the tenants. McDevitt v. Terminal Warehouse Company, 450 A.2d 991, 998 (Pa. Super. 1982). How much moreso is this true in the case where there is no evidence of a lease at all.

Further, even if it were determined that the landlords were “out of possession”, there are several exceptions to the rule that attach liability to an out of possession landlord. Kobylinski v. Hipps, 519 A.2d 488 (Pa. Super. 1986). For example, liability will attach to an out of possession landlord where the landlord conceals or fails to disclose to the tenant a condition that involves unreasonable risk of physical harm to persons on the property. Id.