Chilling from Massachusetts staring out my window at about a foot of snow 4 days before our 1st Covid Christmas. We are having a different kind of BRRRR up north right now that requires shovels and salt. Disclaimer: Please check your own State Laws and state Sanitary Codes concerning snow removal. Obviously, some states need not apply. So jealous right now @Brandon Turner
So here in Massachusetts there are six pieces to this snowflake puzzle. I tried to have six points like a snowflake, a little flaky, but here it goes:
1. State Sanitary Code
2. State Tenant Landlord Law
3. Municipal Code Enforcement
4, The Lease Agreement
5. The “Slip and Fall” Lawsuit
6. Have a Hazardous Weather Plan
State Sanitary Code
https://www.mass.gov/doc/propo…
Here is a link to a searchable document to see what your responsibilities are as the property owner. You can check out this link as a Word Doc and search for “snow” to learn more. In the Massachusetts state sanitary code, the language clearly states:
368 (July 26, 2010) ruled that property owners ARE liable if an injury results due to their failure to remove snow and ice. Further, landlords MUST keep the common areas and sidewalks free of ice and snow accumulation pursuant to the Massachusetts State Sanitary Code regulation 410.452.
State Tenant Landlord Law
https://www.mass.gov/info-deta…
This page sent chills down my spine like a New England Nor’ Easter. Enough to make me reconsider buying properties anymore in Massachusetts without a solid snow removal plan in place before the purchase and sale agreement gets signed. It is amazing that most MLS proformas NEVER even mention “snow removal” in their listing expenses! As with most things, if you are prepared, and have a budgeted line item in your expenses, you “should” be okay. But here in MA, there does not seem to be any way to shovel your way out of the responsibility as the landlord to have an adequate snow removal plan in place.
Municipal Code Enforcement
Congratulations! If you own in more than one town in MA (or possibly your investing state of choice), then you have to check the local city and town municipalities for the “snowball” effect from the different and varying code and policies for each address. Yes, each address! We own several properties in Gardner MA and all of the properties in the downtown area are considered within the business district where we actually are responsible for snow removal from the entire sidewalk so the shoppers can walk the downtown area through the snow to get to local shopping on foot. Whereas other properties away from the downtown area only require a clear path egress from the building to the common way, this means a 36-inch path from the property all the way to the street, not the entire sidewalk in front of the property.
The Lease Agreement
I have seen all types of lease and rental clauses that say this or that about snow removal. Some are really clever and noteworthy. Other clauses are clearly a whitewash of wishes that will never stand in a court of law that will only come back to hit the landlord like a snowball in the face. Here this is a split between SFH and multi-dwelling units. For a single-family home, you should pretty much be able to shift the total snow removal responsibilities to the resident. Again, please check your state and local laws in your area to see if this is true.
Multi-unit dwellings are the bigger issue. ALL COMMON AREAS are to be free and clear of ice and snow, with the exception of exclusive entryways to the building. Not parking spaces, but entryways. Let’s say there is an exclusive walkway from the sidewalk to only ONE of the rental units in your multi-unit building. No one else uses that entryway but that one single, “exclusive” resident. Then you could have verbiage in your lease, that the resident signs, saying “all exclusive driveways and walkways are the responsibility of the resident for snow an ice removal”. Again, I would say this is a case-by-case basis, exceptions always apply, but should be put in writing before you hand them the keys.
The “Slip and Fall” Lawsuit
So many times our “good intentions” as landlords come back to frostbite us. I’ve read above, we give them salt bags, shovels, ice melt. I used to do that too. I didn’t change because I’m a cheapo. On the contrary. We used to buy ice melt buy the skid, sometimes twice a year and let all the residents know they could use as generously as they like, just let us know if you run out and we will bring more. We don’t do that anymore. This past year we have had 2 zoom meetings for our Landlord Association that changed our tune on this.
• Hazardous Weather Preparedness Plans June 2020 Special Guest Speakers is Dr. Alicia Wasula, President of Shade Tree Meteorology, LLC.
Dr. Wasula pointed out that having an alert system in place for foul weather and a written document that explains the landlord/resident responsibilities during hazardous weather conditions is a good start to preparing for that call for an attorney. We also shifted all of the responsibility and hopefully the liability of snow removal, shoveling, salting and sanding to a third-party snow removal contractor with a 9-page snow removal contract. You never know for sure if your plans are going to work until tested in a court of law. Make sure to READ the snow removal contract to see who is liable.
• Attorney Mark Burrell to present: “THE LIST” what every MA landlord needs to know
These two presentations shifted our property management mindset to the liability inherent to these acts of kindness and goodwill. Atty Burrell is a gifted Attorney and amazing storyteller from his vast experience defending landlords in housing court. He cited several instances where landlords were sued for trying to do the right thing. One of his stories revolved around one resident who was given a shovel at the property they could use whenever they wanted in a snow storm. After the resident hurt his back shoveling and missed several days of work, the landlord was sued for not giving proper instructions to the resident “how to use the shovel”. I know, this is ridiculous, but I can’t make this stuff up.
The same happened with ice melt. No instructions were given as to when, where or how much ice melt to use. Ultimately ended up with a slip and fall suit even after the landlord took all precautions of “doing the right thing” and providing these amenities. Another attorney we have hired in the past before he retired religiously would preach “NEVER let your residents perform ANY tasks or labor at the property”. His point was labor laws and liability of workmen’s compensation lawsuits. That is a whole other ball of snow to consider when you drop off that bag of ice melt or complimentary snow shovel.
Have a Hazardous Weather Plan
What can you do if you are buying properties in winter weathered states? You cannot avoid the issue as winter happens and the snow will fly. The best you can do is budget and prepare. Here is a checklist of thoughts we have used in MA to do the best we can during hazardous weather events.
1. Consider the cost as a budget item
When you are running your numbers BEFORE a purchase, talk to other landlords or similar or like properties to get an idea what snow removal may cost a s a budget line item. Join a local Landlord Association – such a valuable resource!
2. Source out the snow removal to a third party
This will not entirely shift the responsibility from the landlord. But having a methodic list of preparedness will at least give you a leg to stand on if and when you are sued. It may not be a foolproof answer, but it will show that steps and measures were taken to prevent such calamities before they occurred. A great resource here is to sign up for text alerts to providers of salt and sand for spreaders. You may not ever use the service, but when we did this when we used to plow ourselves, it gave us the text and phone numbers to over 20 vendors who buy sand and salt for every storm. Looking for a plow company? This is a great way to get direct text and phone numbers to source out for services.
3. Communicate Policies and Procedures to take during an emergency
The National Weather Service https://www.weather.gov/ has features and services to setup and send text alerts to your residents during severe weather situations. This may not mitigate your risk of responsibility should and accident like a slip and fall occur, but it does show a practice of preparedness which may come under your consideration in defense of litigation.
It is also a great idea to send out text messages or email alerts when you know the plows are going to the property. You can also provide specific instructions for each property on how to respond when things like this happen. Maybe a brochure or flyer diagram to show them where to park during a snowstorm, emergency numbers to call, or the plowing contractor if appropriate. The more information and communication during an event will only help down the slippery slope of a lawsuit from a slip and fall from ice and snow.
4. Document Everything
As a property manager, more than half of everything we do comes with documentation. There is the documentation for everything we do, then the additional documentation of leases, addendum, contracts, policies, and all of the aforementioned suggestion above. We try to keep a digital backup in AppFolio, Dropbox, and Google Drive as well as a par hard copy of everything we do. We are hedging our bets that all three digital systems are on different clouds and servers to minimize the risk of data loss. Even if you are still going to drop off shovels and bags of ice melt, which I still think is the right thing to do, keep a log of dates, deliveries, and any special instructions needed, with all disclaimers that the resident is not an employee and these are for private use only. The more organized you are, the better prepared you will be when the snow hits the fan.
What’s on Your Mind?
Do you have any other ideas on this topic you could share to help our online community? Please chime in to share a comment or review. All feedback is welcomed. Thank you in advance for your continued support!
Warmest regards,
Brian Lucier
Belaire Property Management
Regional Property Manager
(978) 448-0669 office
info@belaire.co
www.belaire.co
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