Snow Removal From Common Areas - Liability

Started by DavidW5 • 9 replies • 4836 views

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DavidW5 (North Carolina)
Posts: 565

Posted:

Since inception snow removal from streets, sidewalks, and driveway aprons (1st 9' in from the curb) has been the responsibility of our HOA. Those areas are all defined as common areas. Now the board is proposing to reduce costs by deleting sidewalks and driveway aprons from the snow removal contract, transferring those responsibilities to homeowners.

First, can they do this? Second, if they do, are they exposing the HOA to liability if someone falls and is injured on snow covered sidewalks? Is the HOA liable if a homeowner is injured while clearing snow from a common area (driveway apron)?

Any insights appreciated.

Dave

Jadedone4 (Virginia)
Posts: 495

Posted:

DavidW, I would say that the first order would be to determine who has "ownership" of the sidewalks, and the aprons.

In my community, the aprons are the responsibility and the propert of the owners, however the sidewalks are considered "common areas."

I do know that our sidewalks for the county are considered county property, but there is an ordinance that owners are required to keep that area clear of snow/ice, despite lack of ownership.

I fully sympathize with an HOA attempting to save money on some services such as snow removal. Yet is seems harsh/odd that they want to "transfer" that responsibility (after owning/being responsible in the past) off to owners.

My question would be that since the sidewalks, aprons are now the responsibility of owners, would owner now be allowed to change/alter as they see fit (provided proper applications)?

How would this change the owner's property rights, taxes, assessments, etc?

Wouldn't this require a full community vote...since the deed restriction/relationships are changing?

.... and last, but not least, or popular...(drum roll).. wouldn't it be easier to just raise assessment/dues to fund anticipated snow removal costs...?

PaulM (Pennsylvania)
Posts: 1,347

Posted:

DW5: For the Board to accomplish this task, an actual change would be necessary to the Declaration or Bylaws, whichever document in which the sidewalks and driveway aprons are named as the responsibility of the association. To do this, you must have a yes vote from the percentage of members required (as stated in the document) and file the amendment with the appropriate county/state office/s. IMO, it will be a hard sell to get the residents to see it the Board's way.

This is one of the reasons WHY people buy in a community setting, so they don't have the responsibility of snow/ice maintenance.

You may want to look at 'reducing' the cost of snow removal by instituting a no removal rule, unless 3+" snowfall; residents to spread salt on their own driveway--reasonable ways to work with what you have but all done in the best way to use association funds. Network with like-communities in your area to see what they do, who they have as contractors, what their winter maintenance contract states, etc.

You will never please everyone but you are called, in this instance, to please the majority.

BradP (Kansas)
Posts: 2,640

Posted:

My question would be who owns the property, it should be spelled out in your docs. Whoever owns it should be responsible for snow removal. If the homeowner owns it they should assume that responsibility.

I would think if the HOA owns it and they somehow make a homeowner clear their sidewalks that will open your HOA up to potential liability issues. Who makes sure it gets done, who is going to do it if the homeowner doesn't? What if someone gets hurt walking on a sidewalk that is HOA property that wasn't cleared?

Growing up in a northern state I don't agree with the concept of not clearing those areas until there has been X amount of snow. I think there needs to be a resonable amount of time allowed for it, but if someone goes for a walk and walks down a snow and ice covered sidewalk and falls there will be questions asked.

JudithC (Virginia)
Posts: 253

Posted:

Our HOA says that we must clear the common area sidewalk in front of our home (the sidewalk out to that common area sidewalk is ours which of course we must clear). I remember talking to the attorney about it and getting the impression that if we write it down in official things, publicize it in newsletters, etc. we "might" get away with it. There are also a lot of sidewalks in the interior that no one is in any way responsible for. I am sure in case of lawsuit the HOA would be included, and if I were the judge I would say the HOA was responsible for that no matter whether they tried to put it off on someone else or not. Pray for global warming!

JeanneK3 (Maryland)
Posts: 562

Posted:

Judith C: The association won't get away with it because people other than the Board read message boards such as this one and feel obliged to let their community know the correct procedures.

DavidR5
Posts: 99

Posted:

Interestingly, snow removal isn't addressed in our docs!

AnnaS2 (Indiana)
Posts: 1

Posted:

I agree with you.

snow plowing Goshen, IN

FredS7 (Arizona)
Posts: 927

Posted:

I'm not sure that the ownership is definitive. Some cities consider the sidewalk to be city property yet require homeowners to remove snow and ice.* So it may be possible for the HOA to shift responsibility to the homeowners.

Having said that, such a change would need to be done properly and may require more than just a rule change. I expect you would have to get a lawyer involved.

As far as liability is concerned- the HOA presumably carries liability insurance. Homeowners might want to check their coverage if such a change is made.

* I lived in an eastern city where there was such a rule. It was very widely ignored.

SheliaH (Indiana)
Posts: 6,964

Posted:

This is an old post - if you have questions about this subject, it's best to start a new topic because a lot could have changed in 10 years

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

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