This week’s notes from our legal hotline has to do with your obligation and responsibility for hazardous conditions at a property. Our state legal eagles answer the question, “Who has the legal obligation to remove snow and ice from a property?”
A. The State Sanitary Code requires owners to keep all means of egress free from obstruction, including snow and ice. Property owners owe a duty of reasonable care to visitors of the property and may be liable for injuries caused to a visitor due to the failure to remove snow and ice. This duty extends to landlords, who are responsible for maintaining all entrances and exits to the property in a safe, operable condition at all times. No lease provision may negate this responsibility.
Only in situations where a tenant has an independent means of egress not shared with other tenants and the responsibility for snow removal is included in a written lease agreement may the landlord shift this obligation to the tenant. Placing this responsibility on the tenant, however, may not absolve the landlord, as the owner of the property, from liability if someone suffers a personal injury on the property due to snow and ice. The landlord remains responsible for maintaining all shared walkways, exterior staircases, and doorways free of snow and ice.
Property owners listing their properties for sale in the winter months must also take care to ensure that driveways, walkways, and stairs are free from snow and ice when showings, inspections, appraisals, and walkthroughs are occurring. REALTORS® should not take on the responsibility of snow removal on behalf of their sellers because they may be exposing themselves and their clients to liability for injuries.
REALTORS should advise their clients to:
(1) ensure they have adequate insurance coverage;
(2) determine whether those 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.
Follow-up Question. What happens if 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: 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.
It is unclear if you would be responsible if someone slips and falls as 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.
******************************************************************************
Written by: Justin Davidson, General Counsel; Catherine Taylor, Associate Counsel; and Jonathan Schreiber, Legislative & Regulatory Counsel.
Services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service. The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at legalhotline@marealtor.com.