By: John Richards
Most Property Managers dread the “snow days.” It takes a lot of effort to coordinate your snow removal vendors, especially if there is a continual downpour of the white stuff and it keeps accumulating. Questions arise such as “how often during a storm should the snow plow go out?” If a lot of snow is expected, is it reasonable to wait between “pushes” before they are sent back out, and what liability is there is someone slips on snow or ice that was the Association’s obligation to remove? What about Associations that provide ice melt to their members and asks them to put it on the common area walkways that lead to their door? Does this create any legal concerns?
These exact same questions apply to self-managed Associations with the additional circumstance that many smaller, self-managed Associations use “volunteer” homeowners to remove the snow. The article will address these questions.
When considering the HOA’s obligation to remove snow, first and foremost make sure that you are absolutely certain which portions of the property are either: (1) general common area; (2) limited common area; and/or (3) part of the owner’s lot.
Next, be clear as to whether the owner or the Association is assigned to remove snow from each of these three (3) different types of areas (Note: not all Associations will have all three (3) types of property). Remember, this “assignment” will be set forth in your CC&Rs. If there is any uncertainty whatsoever in your governing documents, have your attorney draft a snow removal obligation chart that shows clearly “who clears which areas” based upon the CC&Rs. This chart is then distributed to the owners.
If an Association member (or their guests) slips and falls and is injured due to snow or ice on the common areas, the Association may be liable, but not in all cases. An Association’s liability is governed by the following concepts: (1) If the owner had the obligation to remove the snow or ice under the CC&Rs, then the Association will not be liable for an injury that occurred in such an area; (2) If an injury occurs in an area over which the Association has maintenance obligations (i.e., snow and ice removal) then the injured owner/guest may have a good case if (a) the Association had actual or constructive notice of the snowy/icy condition (that is, they should have known); and (b) the Association failed within a reasonable time to reasonably remove the ice or snow.
Of course, the term “reasonable” is subject to a lot of interpretations and varies with each situation. However, at a minimum, it is likely to be deemed “reasonable” by a court that an Association has a legal obligation to inspect and remove snow and ice (whether from a single snow fall event or during a continuous snow fall during a storm) on a regular basis for so long as the threat of dangerous snow and/or ice is present. This could create an extreme burden on those Associations that remove snow “up to the door” of a member but this obligation simply cannot be ignored. I believe the legal standard in Utah for an Association to remove snow and ice will be the same as found in the Restatement of Torts which implies that the Association will be liable for an injury if it “fails to exercise reasonable care to protect the members or guests against danger….”
As for giving your members ‘ice melt’ and a shovel to take care of the common area in front of their own doors, I do not believe that this a bad idea at all, however, be cautious of the unintended consequence of the Board believing that members are taking care of potentially slippery and hazardous areas when, in fact, this will remain an Association obligation. One tip, besides those mentioned above, is to hire a reputable and insured snow removal company who will take care of the snow and ice in the parking lot and walkways in a timely manner. As I typed this entry, snow is lightly falling which is something that I presonally thoroughly enjoy. Consequently, let’s not diminish the beauty of the winter season by unnecessarily exposing our Associations to legal liability for failing to keep the common areas reasonably safe and clear from snow and ice.