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operation of its commercial tenant's business--in violation of
the landlord's duty to do so, as previously discussed--the
commercial tenant may set off such replacement cost, provided
that (1) the tenant has informed the landlord of the need to
replace the necessary component; (2) the landlord failed to
replace the necessary component in a timely manner; and (3) the
tenant informed the landlord of its intent to set off the reason-able
costs of the necessary replacement.
Here, (1) Showplace gave the Mall written notice that
the roof could not be repaired and had to be replaced, (2) the
Mall failed to replace the roof in a timely manner, and (3)
Showplace informed the Mall of its intent to follow through with
(a) replacing the roof and (b) setting off the cost for such
replacement. We note that the Mall did not dispute any of these
facts at the trial level.
In short, the Mall was correct that Showplace's duty to
pay rent was independent of the Mall's duty to replace the roof.
However, Showplace was also correct that it met its duty to pay
rent through the set off.
For the reasons stated, we affirm the trial court's
McCULLOUGH, P.J., and TURNER, J., concur.
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