The winter season has arrived in Quebec and, as usual, it brings us cold, snow and ice. These conditions, although predictable, can cause a great deal of concern to owners of rental units, as there are many risks associated with poor weather conditions.
Indeed, a tenant could have restricted access to the building, be injured, lose work time or worse, suffer temporary or permanent physical damage following a fall and want to hold the landlord responsible! Who is responsible in such circumstances? Of course, this is not a simple question, but some rules do apply.
Who is responsible for snow and ice removal?
First, make sure you always indicate who will be responsible for snow and ice removal in the lease, in Section E (bottom of page 2 of the Régie du logement lease). Since the lease constitutes the contract between the parties, the obligations set out in it must be followed. This is the best tool to determine who will have to do what and avoid misunderstandings when winter arrives. In a recent decision, a tenant lost her case and did not obtain any compensation, since according to her lease, she was responsible for snow and ice removal and she was unable to demonstrate the owner's negligence. If there is nothing in the lease, it is advisable to include this addition in the notice of lease renewal.
However, take caution when including clauses in the lease or its appendices that remove all responsibility from the landlord, such as: "The landlords will not be held responsible for any accidental breakage or injury resulting from poor maintenance of the exterior common areas". This type of condition would not be effective under the Article 1900 of the Civil Code of Quebec.
In the case of condominiums, it is the responsibility of the syndicate of co-ownership to take care of snow and ice removal in the common areas, all of which is normally provided in the declaration of co-ownership.
The party who is responsible in the lease may undertake the task personally, or through a third party (examples: the building janitor, an employee or a snow removal company). The party who does not have to take care of it or any third party (a visitor, for example) could obtain compensation if the person responsible does not meet his or her obligations, if damage or loss of use is established and if he or she can prove poor maintenance.
It is important to note that the obligation to remove snow and ice is an obligation of means and not of results; therefore, while this responsibility on the lease is yours as a landlord, it does not mean that you have to be on the lookout for bad weather and put salt on the steps of your building in the middle of the night, if there is freezing rain! At the same time, don't wait until a full day has passed before going to make sure that you secured the premises and apply abrasives. The tenant, for his part, must also take the necessary measures to minimize the risk of falls. If the weather conditions foresee snow or freezing rain showers, or if visibility in the parking lot or on the stairs is reduced, the tenant must not be negligent and must be well-shod accordingly, while redoubling his attention during his movements. In other words, reasonable measures must be taken to prevent accidents.
And insurance in all this?
In fact, any standard liability insurance contract protects policyholders in the event of involuntary damage caused to a party, whether in a residence as an owner or as a tenant. It is therefore often the first step to take in the event of bodily injury related to snow and ice removal, if no amicable settlement can be reached, of course.
Finally, we must not forget that in front of a Judge at the Régie du logement, it is all a question of facts and evidence. Indeed, in Lethiecq v. Mouradian, the landlord lost his case, for not presenting a defence regarding the maintenance done in terms of snow and ice removal. Some interesting ideas that could be used as evidence in the event of prejudice would be to install surveillance cameras in the parking lot/building entrance, take pictures of the location where the accident occurred, record weather reports and provide tenants with containers of abrasives near the building entrances, which they could use if necessary.
In conclusion, it is important to specify in the lease who is responsible for snow and ice removal. Recent decisions as well as general rules of law confirm that when it comes to snow and ice removal, a landlord cannot guarantee the outcome that will result from the means he will use. He must, however, not be negligent, the principle is to act "as a good householder", in a prudent and diligent manner, without, however, having a rigid rule of rigour to follow.