April 23, 2020| Lester Yat
It’s the dead of winter, when the sky gets dark before 6 p.m. and wind chills cause people to tremble uncontrollably. Making matters worse, snow is falling and it doesn’t have an endpoint in mind. This is when thinking ahead can really help you and your short-term future. Being proactive is important, not only for residents in their daily lives but also the managers that look after them and have their well-being in mind. However, sometimes observing a weather report is only helpful to a certain degree. If a foot and a half of snow is set to fall in one’s neighborhood, the best course of action is to stay vigilant and understand how to address the concern.
Recent incidents, including one that led to a particular court case in New Jersey, can better prepare managers for the perils of not being prepared. In the recent New Jersey Supreme Court case “Qian v. Toll Brothers” in August 2015, the court ruled that an association is not immune from liability for personal injuries sustained on a sidewalk which is privately owned by the community association.” The ruling, however, was pretty consistent with common law and related provisions of the Condominium Act and Planned Real Estate Development Full Disclosure Act.
Still, it’s kind of a ‘heads up’ to apartment and condo managers to better take care of property in dire weather. If the temperature drops to a certain degree, snow can freeze and then it becomes like an ice skating rink on walkways and sidewalks. Snow is usually not as feared as much as ice, just due to unpredictability because you don’t know where the slick spots are on an icy path. Going back to the court case, Cuiyan Qian sued Villas at Cranbury Brook Homeowners Association because of a slip and fall that was attributed to unsafe sidewalks on the property. The case was then thrown out due to tort liability, or the fact that the sidewalks were deemed public and associations are not liable for such injuries. But the state Supreme Court reversed the lower court’s decision, saying the Villas — in their own business governing documents — had a duty to upkeep the sidewalks for residents. Also, the Villas collected money from residents as a means of taking care of the elements and the grounds.
And even with no easement to protect the property from non-residents, the Villas was still burdened with the responsibility. Also, the Villas maintained liability insurance for injuries sustained, further demonstrating that they took full responsibility for the sidewalks. Ultimately, after the court considered the fact that the sidewalks were owned, maintained, controlled and insured by the Villas, it made its determination upon the premise that “residential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community. Who owns or controls the sidewalk, not who uses it, is the key distinguishing point between a public and private sidewalk.” In determining ownership, the Supreme Court opined that “(a) critical factor in determining whether a sidewalk is ‘public’ is whether the municipality has sufficient control over or responsibility for the maintenance and repair of the sidewalk.”
Condominiums and homeowners’ associations are impacted by such a decision going forward because of maintenance responsibilities and insurance policies. This is language written into the fabric of a legal binding agreement, and must be overlooked and possibly overhauled if necessary for the benefit of the property and the residents. Going forward, the timely removal of snow combined with an association’s negligence during any season — not just the winter — is important and necessary to show due diligence as an ownership body. Items like checks and cleanup history could be important if a certain property holder is ever sued, as it would show such diligence is taking place. Managers should converse with attorneys in an attempt to create logical yet informative agreements between properties and residents, and so a situation doesn’t come up like the one that impacted the Villas.