Who is Responsible for Clearing Snow at a Tenanted Property? Investors - Read On!
Updated: Sep 19, 2020
As a Real Estate Investor, the courts have found that it is the Property Owner who is responsible for snow removal under the Residential Tenancies Act (2006). We share this with you to keep Investors protected.
Here is an exerpt from a Sorbara Law article:
It is common to see a term that says the tenant is responsible for snow and ice removal in a residential lease. Most tenants accept this responsibility and most landlords rest easy knowing that they have made arrangements for the work to be done. Unless constructed carefully these clauses may be unenforceable.
Under the Residential Tenancies Act, 2006 S.O. 2006 c. 17 at s. 20(1) it sets out that the landlord is responsible for maintenance of the rental property. The Courts have determined that snow and ice removal falls under maintenance in regards to the Act. So, according to the legislation governing these relationships, the landlord is statutorily required to perform these maintenance activities. This is known by most landlords and falls under the obligation to provide rental accommodations that are safe. Landlords will often insert a term in the lease passing the obligation to remove snow and ice to the tenant.
Despite the fact that many leases include a clause requiring the tenant to perform the snow and ice removal they are most likely unenforceable. Generally speaking a landlord cannot pass on its maintenance obligations to the tenant without offering specific compensation for the work. This was determined by the Ontario Court of Appeal in Montgomery v Van 2009 ONCA 808 (CanLII). In that case the tenant was injured when she slipped on the walkway as she was walking towards the stairs to her basement apartment. There was a simple, one sentence, clause in the lease that said “tenants are responsible for keeping their walkway and stairway clean (including snow removal).” The tenant sued for her injuries and was successful in proving that liability rested with the landlord despite the clause in the lease.
In Montgomery the Court ruled that it was possible to pass this responsibility on to the tenant but it must be done by way of a separate contract for services or as a clause in the lease that could be severed and would be able to stand as a separate contract. A landlord is able to contract with a tenant for these services, however, the main concern is whether or not there is any consideration flowing to the tenant in exchange for the services provided. There also needs to be a sufficient description of the services to be provided and the requirements of completing them.
If you are a residential landlord it is important to know that, if you intend for your tenant to perform snow and ice removal, you should have a separate contract for services no different than if you are hiring a third party to do it. The contract should set out what services are to be performed, when the services are to be performed (ie within 12-24 hours after a snow storm) and how they are performed (ie snow moved to a safe area and salt applied to any ice). It should also set out what payment will be received for the services provided. It is still possible to include this in a lease as long as the description of the services to be provided and the compensation is set out clearly. A common form of compensation is a reduction in rent charged. It is not certain whether this would be sufficient so it would be advisable to include a cash payment for the value of the rent reduction instead of the reduction. The main question to be answered is whether you can separate the clause from the lease and have it stand on its own as a separate contract. This is why a rent reduction might not be sufficient.
You can read the entire article at https://www.sorbaralaw.com/blog/post/item/who-is-responsible-for-snow-and-ice-removal-in-a-residential-tenancy
As a cautionary tale, we know a Real Estate Agent who worked with an out of town Investor. He was unable to clear the snow so the Real Estate Agent's husband popped over and shovelled as a favour. The Tenant slipped and the Investor, the Real Estate Agent and the Real Estate Agent's husband were all named in the lawsuit. It was settled by insurance. If the Property Owner had used an insured snow removal company, the investor as well as the Real Estate Agent and her husband would have been protected.
Your best option is a licensed snow removal company who has their own insurance.
If you have questions, we are here for you! Call/Text 905.920.7886