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Snow & Ice Removal

As owner-occupant of a duplex, can I require tenants via lease agreement to take responsibility for snow & ice removal and sanding, salting, etc around their entry steps, entrance decks, vehicles and garage door?

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I think the short answer to this is "no". You can try to put anything in the lease you want about liability, but at the end of the day the question is going to be who's responsible for any accidents that occur on a person's property. MA law clearly assigns responsibility (where it exists) for snow and ice removal to the property owner and does not allow waivers or reassignments of that right.

However, recent MA case law in the last year or so has significantly changed the landlords responsibility by eliminating the old distinction between "natural and unnatural" accumulations of snow or ice. Instead, the rule for liability in such cases will now be the same standard of reasonable that governs all negligence cases in MA. In other words, the main question a court and jury will look at will be whether the landlord behaved "reasonably" in taking steps to clear his property of snow and ice.

This recent ruling was intended to address what were often unintuitive outcomes given the old natural/unnatural distinction. For example, in one case a trial court concluded that a snow pile created by plowing (according to previous precedent) should not be considered "unnatural" simply because it was the result of human creation. That decision was reversed on appeal because the plaintiff in the case had injured themselves on a compacted and hardened piece of ice that had formed in the snow mound while trying to navigate it. The effect of the distinction in such cases seemed to be otiose by not being able to clearly distinguish what counted as natural or unnatural, and so not clearly assigning liability as the distinction was supposed to help do.

The downside to the new ruling is that, notwithstanding the above, it gives less specific guidance to landlords and more discretion to judges and juries about what counts as "reasonable". In the end this is probably good for most landlords, assuming they take the same steps any average person would in trying to keep their properties free from snow and ice accumulation. For example, at one extreme, failing to take any steps to remove ice or snow for long periods of time will likely seem "unreasonable" to most judges or jurors. However, because the guidance is ostensibly less specific, the best advice is to take every reasonable precaution to ensure that walk areas are clear of snow and ice and that man made snow mounds pose no risk to either tenants or guests.

But the question of allocation of responsibility in such cases is, in any event, fairly clearly on the side of the landlord. If you just don't want to have to do the shoveling, you might offer the tenants some incentive (most likely in the form of reduced rent) to do the work themselves, but note that this will not change the liability for any accidents that may occur. You will still have to make sure the snow removal is getting taken care of even if someone else is contracted to do the actual work.

For the recent case law, see here:

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