Brrr. It’s cold. And members have been calling extremely frustrated to arrive at a property showing appointment to discover that the drive or walkway has not been plowed or shoveled. In the cases of long drives, properties were not even accessible to buyers – dangerous and very messy. Members have been so frustrated, they are texting us pictures! While the legal obligations to clear a property remain with the owner (see below Q&A), please remember that YOU have a duty to your fellow REALTORS and prospective BUYERS to inform them of the showing conditions they can expect. If the home you are representing is not ready for safe for showing, you need to know and communicate that ASAP. It’s a basic function of your representation of a property, and your solicitation for showings.
If the owner needs motivation to clear the drive and sidewalks, you could explain the liability they assume when people are entering a listed property – or worse, that they could be turning away interested buyers. Here are some Legal Hotline questions we’ve published on this subject to help you understand the liability issues.
Q: I have an open house scheduled for this weekend at one of my listings and the owners will be out of town on vacation. The forecast is for a large amount of snow and I have agreed to take care of the house while they are gone. Am I responsible if someone slips and falls while at the house? Should I shovel the walk before the open house?
A: It is unclear if you would be responsible if someone slips and falls because you may have inadvertently become a property manager when you agreed to “take care of the house” in the owner’s absence. If you are not the property manager then these claims would normally be covered by the owner’s homeowner’s insurance but that may not cover you if you are the legally responsible person for the property at the time of the accident.
Massachusetts case law has virtually eliminated claims based upon injuries sustained from falls on snow and ice that was considered a natural accumulation. In 1992, the Supreme Judicial Court held that “the law does not regard the natural accumulation of snow and ice as an actionable property defect, if it regards such weather conditions as a defect at all.” Due to this limitation, the plaintiff must show that the snow or ice created an unnatural accumulation in order for the case to be successful. It is possible that once you shovel the snow it could be considered unnatural accumulation if it is more dangerous than when the snow fell. If you do shovel make sure the passage way are clear and not slippery.
Q: As a property owner, do I have a legal obligation to remove snow and ice from my property?
A. All Massachusetts property owners have a duty to use “reasonable care” for the protection of visitors, and are legally responsible for the removal of snow and ice from their property. In terms of liability, homeowners should be aware of the 2010 SJC ruling of Papadopoulos v. Target Corp. That case expanded the duty of property owners to remove snow and ice from their property and definitively held that Massachusetts property owners have a duty to use “reasonable care” for the protection of visitors, and are legally responsible for the removal of snow and ice from their property.
The Court did not define “reasonable care,” and the duty of the property owner will depend on the specific situation. It is recommended that every property owner should take are to do the following: (1) review insurance policies to be sure that there is adequate coverage; (2) determine whether contractors or others hired to remove snow and ice have insurance; and (3) be vigilant when there is newly fallen snow, melting or freezing. If complete clearing is not possible, warning signs may be appropriate. Clients that have specific questions regarding their duty to clear snow should consult their attorney.