As most law professors say, “it depends”!

More specifically, liability will normally fall on the least reasonable person in the mix.  However, most leases require the landlord to maintain the roof.

In 2010, Courts stopped using the natural accumulation rule and replaced it with the more widely understood Restatement rules (a.k.a. the reasonable person standard). The Court overruled the natural accumulation rule to keep property (rental or owner occupied) safe for all visitors and guests. The following are some common provisions within the reasonable person standard related to businesses:

  • Driveways, sidewalks, and walkways should be kept clear, within reason and within a reasonable amount of time.  Each town or city will have their own ordinance on the minimum amount of time allowed for the removal of snow; however, tenants should review their leases or hire a professional to review their lease.  With many commercial leases, the tenant is responsible.
  • If there are icicles that pose a threat to occupants or their invitees, the landlord should take reasonable measures to remove the threat, unless there are specific provisions placing the onus on the tenant.
  • If the roof is overloaded with snow and the overloading is reasonably foreseeable, and the landlord does not mitigate, they may be held responsible for any damages.
  • Ice dams often cause intrusion of water inside the premises. In many situations, the landlord or its insurance company, will need to compensate the occupant for any losses incurred.  This situation is often considered to be outside the tenant’s space and therefore not typically covered by rental insurance.
  • Re-freezing on sidewalks/driveways/walkways: if reasonably foreseeable, precautions should be taken to avoid the dangerous condition.

Before landlords consider revising their leases, careful consideration should be given to associated property insurance risks.  Landlords should give their insurer and attorney a call before overreacting to this crisis caused by our record-breaking snowfall in 2015.  Similarly, as a tenant (residential or commercial), please call a professional in advance of the next crisis, so that you can be prepared with the facts and at least a basic understanding of your rights and responsibilities.

As everything begins to melt, and rain begins to fall again, we can expect many roof issues in our near future.