WINTER IS COMING...ARE YOU READY?

Ready or not, winter is quickly approaching and far too often, condominium associations find themselves unprepared for Mother Nature’s wrath. Accordingly, it is essential for condominium associations to plan for the winter ahead, even as the last of our summer tans are still fading.First, associations should ensure that the condominium’s insurance coverage is up to date and is consistent with the requirements set forth in the condominium’s declaration of by-laws. It is also recommended that the association remind unit owners to have their own H06 policies to cover their own personal property in the event of a loss. Additionally, associations should have a clear plan in place for the reporting of insurance claims to the condominium’s property manager and/or to the managing board, and the association should disseminate that protocol in advance to all unit owners, so that the association will have an easier time managing and fielding calls following a widespread loss, i.e., the reporting of ice dam conditions.Some things (like ice dams) may be unavoidable, despite an association’s reasonable efforts to remove snow and ice. However, an association is still required to exercise reasonable care to properly maintain the condominium’s common areas during winter months and during periods of prolonged inclement weather. To that end, associations should regularly remove snow from the condominium’s common area roof(s) and/or awnings. Additionally, associations should clear ice and icicles from common areas to prevent ice from falling. In some cases, this may prove difficult if the common areas where icicles may be forming are not easily accessible (particularly during those winters where a significant amount of snow falls). However, even if these common areas are not easily accessible, it does not absolve associations of their obligations to maintain the same. Therefore, it is important that associations have a plan in place for investigating those difficult to reach areas, and it may be helpful in such instances to request that all unit owners or residents whose units are adjacent to those common areas, to promptly report any adverse condition, which the association may not otherwise be aware of.Unfortunately, we never know in advance how much snow will fall in any given year or how cold it will be. However, associations are still responsible for having a plan in place for snow and ice removal from the condominium’s common areas, and many associations will contract with a third party vendor/contractor to provide snow and ice removal services. When contracting for snow and ice removal, associations typically choose between a fixed price contract or a “per inch” contract. With fixed price contracts, the amount charged for the season is set in advance, up to a certain snow fall total. This type of contract may useful in budget planning because the contract price is known in advance and can be factored into the yearly budget. With the “per inch” contract, associations are charged based on the amount of snow that actually falls (typically with reference to an independent source of measurement, i.e., a local newspaper). This type of contract may save associations from the expense of a fixed price contract (particularly if it snows very little), but it could also be a gamble if it snows significantly during the season and may prove to be very costly. If the association has a healthy reserve account, then the association may be willing to assume the risk associated with a “per inch” contract. However, for those associations with limited resources, the “per inch” contract could potentially result in a supplemental common expense assessment to unit owners to cover the unforeseen expense associated with substantial snow removal.Regardless of the type of snow removal contract selected, each association should request that the snow removal contract contains an indemnification provision whereby the snow removal contractor/vendor agrees to assume responsibility and liability for any injuries and/or property damage suffered on account of the work that the contractor/vendor is to perform at the condominium.Additionally, associations should make sure that their snow removal contractor/vendor has a clear understanding of the expectations for performance. If the snow removal contractor/vendor is only going to plow (and not shovel or salt/sand walkways), then the association should make all reasonable efforts to ensure that the walkways are properly treated and snow/ice removed therefrom. Additionally, if a contractor/vendor is only expected to come to the condominium once during a snow event, then the association has to again, make reasonable efforts to remove the remaining snow and/or ice which would not otherwise be cleared. It is also important to remind unit owners in advance of their obligations during a snow event, so that they do not unreasonably rely on the association to remove and clear snow and/or ice from those areas which the unit owners are exclusively responsible for maintaining in accordance with the condominium’s governing documents.   Remember, we are New Englanders and will get through this winter and with a little advance preparation, winter may not be as bitter (although it will most certainly be cold!).For any questions regarding this article please contact Jennifer Barnett at jbarnett@meeb.com.