By Darryl Beckman
The legal requirements for snow & ice management at multifamily residential entities, such as condominium and homeowners associations (HOAs), is evolving, leading to confusing legal challenges, including disparities on how individual states view potential liability. The simple purpose of this column is to offer practical advice to guide your company in navigating this complex area, starting with a basic understanding of how the law has evolved.
Courts initially allowed lawsuits against commercial property owners for injuries resulting from a deteriorated public sidewalk, saying sidewalks help the business operate, and the owners need to make sure their customers can come and go safely. This line of reasoning was gradually extended to a requirement that commercial sidewalks and parking areas be kept free of snow & ice. We are all familiar with the potential liability of a retail shopping center for failure to keep its parking lot clear of snow and ice.
Over time, courts extended sidewalk and parking lot liability to owners of apartment buildings, a parochial school, a fraternity, smaller multiple-family buildings that were not owner-occupied, and other types of commercial and investment properties. Again, courts were simply saying sidewalks and parking areas help these entities operate, and the owners need to make sure their clients and customers can come and go safely. No one should be surprised by the legal requirement that an apartment building must keep its parking areas and walkways safe.
Courts do not, however, hold single-family residential homeowners to the same heightened liability standard as commercial property owners.
Middle ground
Multifamily residential entities, including condominiums and HOAs, fall between the single-family residential homeowner and the large retail store. A recent court decision in New Jersey holds the HOA to a different standard for walkways expected to be used only by residents and guests and exterior walkways expected to be used by the general public. Even more confusing, for so-called hybrid properties that mix residential and nonresidential use, a fairly new test used by some courts is whether the hybrid properties are predominantly owner-occupied.
Follow the contract
There is, thankfully, a simple rule for snow & ice management companies: perform whatever services are required by the contract. If the contract calls for snow clearing to begin at 2-in. of accumulation, services must begin at 2-in. of accumulation. If the contract calls for follow-up inspections after services are complete, follow-up inspections must be performed. The contract spells out the legal responsibility of the snow and ice contractor. This responsibility may be greater or less than the legal responsibility imposed upon the HOA, but all the snow & ice management company must do is satisfy the contractual requirements.
Best practices
The following tips are especially important when working for multifamily residential entities:
Do not perform services for an HOA without a contract. The confusion and ambiguity regarding the legal responsibility of HOAs will become the problem of the snow & ice management company if a lawsuit is filed and services are performed without a contract.
The contract must be written. A verbal agreement is not sufficient. Recollections concerning requirements contained in verbal agreements remarkably differ when a legal claim is filed. You may be sure you were told not to pretreat, but your client may have a different recollection.
The contract must set out basic requirements. When services are to begin, what services are required, and when inspections are to be performed should all be included. I have written numerous columns discussing the basic elements of a contract. One element I sometimes fail to focus upon, but will in a future column, is customer billing. There is a trend toward flat-fee contracts, billing a set amount for the snow season. The contract must clearly spell out whatever billing arrangement is agreed upon.
Make sure you’re covered. There are policies of insurance excluding coverage for snow clearing and deicing at residential condo-minium developments. Your insurance policy must cover the services you are providing. There may also be a requirement your company identify the HOA as an additional insured on your contract of insurance. Again, your insurance agent should be aware of the requirement and make sure your insurance policy is in compliance.
Darryl S. Beckman is counsel to the Budd Larner law firm, and in the litigation group of the firm’s Cherry Hill, NJ, office. He represents and advises many large and small snow and ice management companies throughout North America.
