So the first question of the new year to our MAR legal eagles involves our favorite Berkshire winter subject… snow and ice!  The MA REALTOR asks:

Q.  My client owns a rental property and insists that he has no responsibility for removal of snow except for clearing the sidewalks as required by a municipal ordinance. Is he correct?

A. The usual rule is that it is the responsibility of the homeowner or landlord to keep means of egress free of snow and ice. The State Sanitary Code provides that, “the owner shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice.”

If the residence has its own means of egress, meaning that it is not shared with other occupants, the landlord and tenant can agree to allocate the responsibility of maintaining such egress free of snow and ice to the tenant. Therefore, in situations where there is a single or multi-family home and the occupant has its own exclusive means of egress, be sure to review the lease to determine who is responsible for keeping exclusive means of egress clear of snow.

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.

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 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.