After Winter Storm Jonas (more popularly known as Snowmageddon 2016), New York City had 2.5 to 3 feet of snow in places. It was hard not to notice that some patches of sidewalk were shoveled while others weren’t, requiring pedestrians to navigate alternative routes. Sometimes, this means walking out in the street, which can be dangerous. I experienced this first-hand in front of a local H&R Block store.
So who’s responsible?
There is no clear-cut answer, but the general rule for maintenance in a rental situation is this: whoever has the most control has the most responsibility. For example, if a tenant has their own air conditioning, which they control, then they are responsible for its maintenance. But if it’s a chilled water system or central air system in the building, which the tenant doesn’t have control over, then the landlord is responsible for the maintenance. There are exceptions, as with anything, but that’s how responsibility is typically distributed in retail lease situations.
So the first layer of responsibility belongs to the one who is present at the time — in this case, the retail tenant. The retail tenant is in the space, its customers are coming in all day long, it’s using the space every day while the landlord is often not; in fact, the landlord might be in Florida, not watching what is happening in front of the building at all.
In almost every lease, the retail tenant is responsible for clearing the sidewalk. But that doesn’t alleviate the landlord’s ultimate liability. It’s still the landlord’s property, and if someone slips and falls, they will sue the landlord. Now, the landlord may counter-sue the tenant, saying, “Clearing the sidewalk was your responsibility,” but the reality is that the landlord has the ultimate responsibility — legally, anyway.
In practice, many buildings have a superintendent who shovels the sidewalk. Single-occupancy buildings may not have a superintendent, in which case, the tenant is responsible for clearing the sidewalk. Since the tenant is always there, with customers coming and going, he’s concerned with his business and will usually make sure that the sidewalk gets cleared — whether by the superintendent or by someone else. It’s in his best interest to do so.
What about lobbies?
The lobby area is governed by the same general rule of control & responsibility. The landlord controls common areas such as shared lobbies, so in wet weather, the landlord is responsible for putting down mats and so forth. Not only may this protect him from liability in case of a slip-and-fall type of accident, it also protects his property from water and salt damage. It’s in the landlord’s best interest to maintain a safe lobby.
Most of the time, landlords and tenants “do the decent thing” and maintain their spaces without a problem. But when there is a lapse in care, it can sometimes be unclear who is responsible.
Has Snowmageddon 2016 left you in such a situation? Share your story below.
George E. Grace
Mohr Partners, Inc.
232 Madison Avenue
New York, NY 10016