LET THE SHOVELING BEGIN!

Published on: February 11, 2015

Just in case you haven’t noticed, it’s been snowing lately – a lot. And with snow comes slippery conditions, and with slippery conditions comes that nine letter word that strikes fear in the hearts of all property owners – “liability.” Which is why it is absolutely essential for associations and communities to adopt snow and ice policies which clearly (and correctly) establish the duty and responsibility for snow and ice treatment between those that unit owners are responsible for, those that the association is responsible for, as well as the areas and times in between.

Since the Massachusetts Supreme Judicial Court discarded the natural accumulation defense in 2010 when deciding the case of Papadopoulos v. Target Corporation, it has become even more critical for associations to have a well thought out (and well documented) snow removal and ice treatment plan in place. But under the new reasonableness criteria, where a property owner owes a duty to use reasonable care to maintain its property in a reasonable safe condition in view of all of the circumstances – even the most exemplary snow plan may be open to question by a jury in the event of an injury claim.   For this reason it is critical for associations to take preemptive steps to adopt and communicate by policy, what areas of the property the association is responsible for treating, and what areas unit owners are responsible for treating. Certainly, common area roadways and entranceways have to be treated by an association. But what is often not clear is who has the responsibility for clearing snow and ice from individual balconies, decks and patios, as well as stairways, walkways and driveways that serve individual units?

Often these areas are set out in the governing documents as exclusive use areas for which owners have easement rights, but the areas are not part of the units themselves. Thus, these areas are part of the common areas, and unless stated otherwise, may fall into general common area maintenance allocation provisions, thereby establishing a duty upon the association to treat the areas for ice and snow removal. This is true even if the areas in question serve only one unit. The problem of course is developing a snow treatment plan that meets the standard of review required.  If overnight snowfall ends at 4:00 a.m. can it be expected that the association’s maintenance team or contractors could possibly clear snow from the exclusive use areas by 8:30 a.m.? The answer in most cases is no – at least not while meeting actual budget constraints.

Fortunately, communities have some options and depending on how the condominium documents are written, it may not require an amendment or unit owner consent. In many cases, associations may rely on the wording contained in M.G.L. c.183A, Section 6, which among other things, allows Managing Boards to designate maintenance responsibility for limited common areas to individual unit owners. In fact, in the last few years, many of our clients have adopted specific resolutions to address this issue head-on, before an injury claim has been brought. In doing so we believe associations can significantly reduce the exposure associations now face for snow and ice injuries, as well as reduce the price tag for snow and ice treatment plans.

So, while we are all tired of thinking about snow and ice, spending time planning and adopting a policy which fits your community is time well spent, might save some money, and could prove nice insulation in the event of an injury claim.

If you would like to discuss snow removal resolutions for your condominium associations, please contact Mark Einhorn at meinhorn@meeb.com or call him at 781-843-5000, ext.121.