Snow and ice removal: whose responsibility?

Winter has arrived in Quebec, bringing its usual share of cold, snow and ice. While these conditions are to be expected, they can be a real headache for rental property owners, as deteriorating weather conditions are often a source of risks and disputes.

For example, a tenant could find himself with limited access to the building, suffer a fall resulting in temporary or permanent injury, lose time from work, or even claim the landlord's liability for these harms. So who is really responsible in such situations? While the answer may seem complex, there are a number of rules and legal rulings that can help clarify the issue.

 

Clearly define responsibilities in the lease

First and foremost, it is essential to clearly state in the lease who is responsible for snow and ice removal. This information should be indicated in Section E of the standard lease from the Tribunal administratif du logement (page 2).

However, it is forbidden to include clauses that entirely exonerate the landlord/owner from any responsibility, such as, “Landlords will not be responsible for any damage or injury resulting from poor maintenance of exterior common accesses.” Such clauses are considered null and void, in accordance with Article 1900 of the Civil Code of Quebec.

A well-drafted lease is the key to avoiding misunderstandings and disputes. Take Doucet v. Pépin, for example. Pépin: the tenants did not obtain compensation, as their lease stipulated that they were responsible for staircase maintenance, and they were unable to prove the landlord's negligence. If these responsibilities are not stipulated in the lease, it is advisable to add them to the lease renewal notice.

 

The landlord's obligation: a question of means

The landlord/owner has an obligation to take the necessary steps to prevent foreseeable damage. However, according to a recent decision (Gil Romero v. 9269-6111 Québec inc.), this obligation is an obligation of means, not of result. This means that the owner must act prudently and diligently, without guaranteeing that the efforts undertaken will eliminate all risks.

In this decision, the Tribunal administratif du logement also points out that the mere presence of snow or ice is not sufficient to engage the landlord's liability. Tenants must also adapt their behavior to winter conditions, for example by wearing appropriate footwear and being vigilant.

In the case of condominiums, the syndicate of co-ownership is generally responsible for snow and ice removal in common areas, according to the declaration of co-ownership, unless otherwise specified.

 

When responsibilities are shared

If the lease designates the tenant or landlord as responsible for snow and ice removal, these tasks may be carried out directly or entrusted to a third party (janitor, employee, specialized company). In the event of failure to comply, an aggrieved party (tenant, visitor, etc.) may claim compensation, provided it can prove:

1. Non-compliance with the obligation(s).
2. Damage suffered.
3. A causal link between the breach and the prejudice suffered.

However, it is important to remember that before the judge of the Tribunal administratif du logement, everything is a question of facts and evidence, and the judge has discretionary power in his or her assessment. Indeed, in Lethiecq v. Mouradian, the landlord lost his case, having failed to present any defense concerning the maintenance carried out in terms of snow and ice removal.

Disputes between landlords and tenants fall exclusively within the jurisdiction of the Tribunal administratif du logement, while third-party claims must be brought before other judicial bodies, depending on the amount of the claim.

 

The role of insurance

In the event of damage, insurance can play a crucial role. Liability insurance policies protect owners and tenants in the event of unintentional damage caused to third parties. In the absence of an amicable settlement, this is often the first step to consider. For more information on liability insurance, click here.

 

A few tips to protect yourself

To make sure you're protected in the event of a dispute, here are a few preventive measures to consider:

• Install surveillance cameras to document the maintenance of outdoor areas.
• Take photos of the premises in the event of an incident.
• Keep weather reports as proof of efforts made.
• Make abrasive material available to tenants near entrances.

 

Conclusion

When it comes to snow and ice removal, it's imperative to act with diligence, while specifying responsibilities in the lease. A landlord cannot guarantee a perfect result, but must take all reasonable steps to ensure the safety of the premises. Prudence, preparation and proactive management can limit risks and minimize conflicts.