Snow Removal - who is responsible

I have just returned from Christmas holidays in Florida...before the cold weather arrived there.  Like almost everywhere else, it is starting to snow in Essex County, also known as the “Banana Belt”.  The label is probably an attempt to convince ourselves (and other Canadians) Essex County does not have winter. Weather reports show however, that in an average year Windsor has 28 hours of blowing snow. Surprisingly, this is 13 hours more than Edmonton. So Essex County does have its winter, but overall it is shorter and milder than in most other areas of Canada. This has brought to mind the old question of who is responsible for the removal of snow.

This has always been a difficult question for the Board.  Here is what the Landlord Tenant Board’s website says:

Who is responsible for snow removal?

It is the landlord’s responsibility to make sure that the residential complex is kept in a good state of repair, fit for habitation and to comply with any health, safety, housing and maintenance standards.  Failure to clear the snow may be a breach of municipal safety, housing or maintenance standards. These standards generally set out that it is the owner’s responsibility to make sure that the property can be safely entered and exited.  The Act does not deal with this issue. It would be up to a Member to decide whose responsibility snow removal is, based on the circumstances presented in the specific application that is filed.

Both landlords and tenants want a simple answer.  There may not be a simple answer, but the Ontario Court of Appeal recently provided some guidance this summer on this wintery topic in Montgomery v. Van, 2009 ONCA 808 (CanLII).

The Tenant entered into a written tenancy agreement with the Landlord to rent one apartment in a building of six apartments, all of which utilize common walkways and stairways. The Lease stated that the tenants were responsible for keeping their walkway and stairway clean (including snow removal).  When the Tenant slipped and fell on ice and snow that had accumulated on the walkway, the Tenant sued the Landlord.  The Tenant claimed it was the Landlord’s responsibility to keep the walkway free of snow and ice. The Landlord responded that the tenants were responsible for the removal of ice and snow from the common walkways under lease.

The trial court initially dismissed the Tenant’s claim.  Ontario Regulation 198/98 (since revoked and replaced by Ontario Regulation 517/06) established maintenance standards to residential units in the circumstances defined by s. 154 (1) of the Act.  Both the Landlord and the Tenant agreed these standards applied to the premises in this case (local by-laws and not the Regulation may not apply to your situation).

Section 26 of Ontario Regulation 198/98 [now section 26 of Regulation 517/06] provides:

“Exterior common areas shall be maintained in a condition suitable for their intended use and free of hazards and, for these purposes, the following shall be removed:

                  …

                  5.         Unsafe accumulations of ice and snow.”

The Tenant argued that the provision in the tenancy agreement that attempted to make the tenants responsible for snow and ice removal of an exterior common area was inconsistent with this. If so, this section of the Lease was void because section 16 of the Tenant Protection Act [now section 4 of the Residential Tenancies Act], which provided that any provision in a tenancy agreement “that is inconsistent with the Act or the regulation is void.” 

The trial court accepted the Landlord’s argument that the Act and Regulations did not specifically require a landlord to personally complete snow removal tasks from common areas. A landlord is simply required to “ensure” that such tasks are completed. Landlords could fulfil their statutory obligations by delegating snow removal tasks to others, including the Tenant.

The Court of Appeal overturned the trial court’s decision on the specific facts before it, but left it open to the Landlord to delegate the obligation to tenants.  The Court of Appeal stated that the Act and Regulations make it clear that in the residential landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice.  Therefore, it cannot be a term of the tenancy that the tenants complete snow removal tasks. 

To be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation independent from the tenancy agreement. The agreement does not have to be in a separate document.  It can be contained in the tenancy agreement, however, the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. 

While such a clause cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, it may support the landlord’s claim over against the tenant in contract.

In this case, the provision was not severable from the tenancy agreement.  It did not indicate a definite consideration for the snow removal task separate from the provision of the premises. 

As well, the clause was too indefinite to create an autonomous contract for services.  The provision vaguely placed the task of snow removal “from their walkway and stairway” on tenants jointly.  The provision failed to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.

Lesson Learned:

1.         The Act and Regulations make clear that in the residential landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice.

2.         It cannot be a term of a tenancy that the tenants complete snow removal tasks.

3.         A Landlord can enter into a separate contract with the Tenant in which the Tenant agrees to snow removal services.  If you decide to go this route, get legal advice.  Such an agreement should be carefully drafted and should provide:

i.          a clear indication of the tenant’s obligations under the contract; and

ii.         separate compensation to the Tenant for these services.  It remains to be seen if a nominal payment of, for example, $5.00 per month, which can be offset against the rent, will withstand a challenge. 

4.         If someone falls on your premises and decides to sue, you will be sued.  While such an agreement cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, it may support the landlord’s claim over against the tenant in contract.