Winter in New England is upon us. I still look forward to a winter storm; with the ability to work from home, the days of hoping for a
snow day might become only a distant memory for most of us, but in my opinion, the only thing that makes below-freezing temperatures bearable is when the neighborhood looks like a winter wonderland. But my opinion is not a popular one. For most people, snow—or more accurately, snow removal—is one of the most tedious parts of living in New England.
Snow and ice can be an annoyance, but more importantly, snowy and icy conditions can lead to people getting hurt.
Keep Those Common Areas Clear. For condominium associations snow removal is not just an annoyance. The condominium association is responsible for repairing and maintaining the common areas of the condominium, including the responsibility to keep common areas clear of snow and ice. More importantly, proper snow and ice removal is necessary to protect condominium unit owners and their visitors from hurting themselves and to protect the association from liability for any injury.
The Code of Massachusetts Regulations, 105 CMR 410.452, requires property owners to keep “every means of egress” from a building in a safe and operable condition, which includes keeping those areas free of snow and ice. “Means of egress” are pathways, exterior stairs, fire escapes, and any other area which are used to exit the building. In general, a condominium association should have a plan for snow and ice removal for all affected common areas that are, by the governing documents, the responsibility of the association to repair, replace, and maintain.
There may be some limited common areas in a condominium association, for example balconies and decks, or even walkways that service only one individual unit, but are not part of that unit. It may not be clear whether the association is responsible for snow removal in these limited common areas. However, unless an individual unit owner’s responsibility for snow removal is clear, either by the governing documents or by some other agreement, the association is at risk of liability for any injuries which may occur in these limited common areas. In the absence of a clear directive to the contrary in the condominium’s governing documents, an association may adopt a rule and regulation requiring unit owners to manage snow removal for limited common areas. Such rule and regulation should be adopted only after confirmation that there is no contrary directive in the governing documents and should be specific about what areas the unit owner is responsible for and minimum standards for proper removal. In the absence of such a clear directive or rule, however, the association should manage all snow and ice removal.
Liability for Injury. In Massachusetts, property owners were formerly only liable for injury resulting from “unnatural accumulations” of snow and ice. In other words, property owners were not liable for injuries resulting from natural snowfall and ice accumulation. The rationale was that any person should know when it has snowed outside and conditions are icy or dangerous, so property owners should not be liable for something naturally occurring, every winter, outside of their control. Under this old rule, a property owner would only be liable in circumstances where, for example, precipitation was abnormally high one winter, or if the property owner had created an unnatural or particularly dangerous condition on his property by his methods of snow removal.
In 2010, however, the SJC abolished the distinction between natural and unnatural accumulations of snow and ice in a case captioned Papadopoulos v. Target Corp., 457 Mass. 368 (2010). Now, the fact that everyone knows there is snow on the ground does not alone relieve a property owner of liability. In Massachusetts, courts will analyze liability for injuries resulting from property which was not reasonably safe regardless of whether the accumulations of snow and ice were natural or unnatural.
To prevent injury, condominium associations must take care above and beyond keeping pathways and other “means of egress” safe and clear. The association should take care in how snow and ice are removed as well. In a case captioned Barrasso v. Hillview West Condominium Trust, the court stated that property owners are required to take reasonable care while removing snow, because “those who, while removing snow, create conditions on their property that may be dangerous” may be held liable for injury resulting from those conditions.
State Laws and Local Ordinances. Condominium associations should also consider environmental regulations for winter weather. Massachusetts law regulates the storage and use of “rock salt” and other ice melts, particularly when the storage or use can affect groundwater. General Laws c. 85, § 7A requires that any chemicals used for the removal of snow and ice, stored “within 200 yards of an established river or estuary,” must be stored in a solid frame shed to ensure against ground leaching and airborne pollution. This same section requires that any person who uses more than one ton of chemicals for snow and ice removal within a calendar year must report to the Department of Environmental Protection.
Lastly, Massachusetts law enables cities and towns to enact ordinances and by-laws with respect to snow and ice removal. Many cities and towns require property owners to clear the sidewalks that abut their property; some have time requirements for how long after a storm common surfaces must be cleared of snow and ice. In Boston, for example, sidewalks must be cleared within three hours after it has stopped snowing, or, if it snowed overnight, within three hours after sunrise. Also in Boston, property owners can be fined for shoveling snow into the streets. Be sure to check your city or town’s local ordinances for any additional requirements.
Considerations for Snow and Ice Removal. Snow and ice can be an annoyance, but more importantly, snowy and icy conditions can lead to people getting hurt. When planning for snow removal this winter, it is important for condominium associations to consider factors such as location of snow piles, accumulation of snow on roofs, icicles and other falling ice, and rock salt or other ice melts.
Furthermore, unless there is a provision in the governing documents rule and regulation for unit owners to clear limited common areas, condominium associations should remind residents not to remove snow themselves. If a condominium unit owner injures herself clearing snow on the common stairs or pathways, the association could be liable.
This winter, keep your residents safe, protect the association from liability, and if you’re like me, enjoy the winter wonderland while it lasts
Bridget Rose is an associate in the
litigation and real estate departments of the Boston and Quincy based firm of
Moriarty Bielan & Malloy LLC. Prior to joining MBM, Bridget clerked for
Land Court Associate Justice Kevin T. Smith where she worked on a variety of
decision including zoning appeals, title defects, condominium disputes, and
Dover Amendment litigation. Bridget can be reached at brose@mbmllc.com.
