Condo Snow and Ice Removal Insufficient

A.B. from Hartford County writes:

Dear Mister Condo,

In my condominium association, all the units are two-story attached townhouses in a number of separate buildings with about a half mile of roads and paths that are Common Elements around the complex. Each unit has its own stoop, and the stoops are Limited Common Elements that the Association is responsible for maintaining under the condo documents. In addition, almost half the units have garages in freestanding buildings. The garage interiors are owned by individuals and the buildings – and the roads between the condos and the garages – are common elements.

The contractor for snow removal has been doing a very poor job. Most of the units’ stoops, the paths to each unit, and the roads were covered with ice and snow well after the last storm a week ago and many of the garages were inaccessible. I and other residents notified the manager and the manager said he would “relay our concerns to the Board and the contractor.” The Board members refuse to discuss Association matters with owners who contact them outside of Board meetings, which are held once a month.

After this week’s storm, the contractor did an even worse job, and again I and other residents notified the manager, who again responded that he would relay our concerns. I have also sent him a number of photos showing the ice and snow in the common and limited common elements.

Today we received a memo from the manager titled Ice Dam Concerns that stated in part :

“Hanging Icicles – This is a common occurrence in weather conditions that we are currently experiencing and do not necessarily represent ice dams that will cause interior damage. Nonetheless, if you are able to knock these icicles down without exposing yourself to potential harm, please do so. For those areas that are beyond your reach, please contact our office so that we may remove these icicles from your entrance way if you believe they present a dangerous condition.

“Ice Melt – Undoubtedly, if current weather conditions continue, ice melt availability may be difficult. The Management Company recommends that you purchase a personal supply of this product to have on hand to maintain safe egress and access to your home. When possible, we recommend entering your unit through the garage area to avoid icy and slippery conditions.”

I seriously question the wisdom of encouraging residents to knock down icicles especially since the only place they would stand to reach them is on their icy stoops and driveways. In addition, fewer than half the units have garages from which owners can access their units directly. Also, many owners have dogs – which the Rules permit them to walk on the paths and roads around the Association – and into the dog pens.

By tonight, after today’s warm weather, the roads and paths are literally sheets of ice.

I do not understand why the manager would tell owners – many of whom are elderly – that it’s their responsibility to maintain common elements such as the roofs from which the icicles hang and the stoops, paths and roadways – since obviously if an owner or a service person or a postal worker or a guest or whomever is injured, their claim will be against the association as a whole (and three people did bring claims last winter – causing our insurance rates to skyrocket).

We will, of course, bring this up at the next Board meeting – which is three weeks away. In the meantime, if neither the manager nor the Board responds and if the snow and ice aren’t adequately removed by the contractor, if the owners hired an appropriately licensed and insured contractor to come in and plow the roads properly and shovel the snow from the paths and stoops, what’s the likelihood that we’d be entitled to get reimbursed by the Association? Should we retain a lawyer? Do we have any other alternatives besides sitting around and waiting for claims to be filed?

Mister Condo replies:

A.B., so many issues and so few easy choices! This winter has been brutal on all of us in New England, your community included. Of course, it is not the disaster that challenges us as much as it is the disaster response plan, or lack thereof. Let me break down a few of your issues and see if I can offer some friendly advice.

I will start with the immediacy of you and your neighbors hiring a contractor to plow the roads and then get reimbursed by the association. I appreciate the practicality of the suggestion but it is just a bad idea on many levels. For starters, the official voice of the association is the Board of Directors. They are the only ones legally eligible and qualified by your association’s governing documents to enter into an agreement with a vendor to do work on behalf of the association. Technically, the roads in question are not owned by you or your neighbors. They are owned by the association, which is a legal entity unto itself. It is a non-profit corporation with legal standing and a set of rules in place detailing who the directors are and how they are elected by the unit owners. Quite simply, you do not have the authority to hire a contractor to do work on property you do not own. If you do hire a contractor to do this work, not only is it likely you will not be reimbursed, you and the contractor could even find yourselves on the receiving end of a lawsuit for performing unauthorized work on association grounds. Please, do not do this.

Instead, consider the proper channels, which, it would appear you are following. When a contractor does a poor or unsatisfactory job for the association, it is the Board’s charge to correct the work and get it taken care of correctly. Without having access to the exact contract entered into, I have no way of knowing where the deficiency lies. Snow removal contracts are usually fairly straightforward and either carry a price per season or per snowstorm. The community may have additional clauses for sanding icy walkways, clearing foot paths, decks, areas around fire hydrants, etc.. If the contractor is not fulfilling the agreement, the Board, and only the Board, is free to take action to break the contract and hire another vendor. At this late date and with the snow removal folks working as hard as they can, that may not be practical for this season. However, the Board needs to consider all factors when breaking a contract, including being found liable for the full amount of the contract if the contract is broken for the wrong reasons. This is where the advice of the community association attorney becomes invaluable. The advice should also be sought BEFORE entering into a contract for next year.

The Property Manager can only do so much in situations like this. Relaying unit owner concerns is one of those things. Following the protocol as set out by the Board is another. I am not familiar with the practice of asking unit owners knocking down icicles or anything else as a best practice but they did also offer to knock down the icicles if a unit owner requested them to do so. That activity puts the association at risk for someone getting hurt, either by slipping while trying to knock down an icicle or from the falling icicle striking someone. The Board instructs the Property Manager on what items to send to residents, so you would do well to raise the issue at an upcoming meeting and suggest they cease this practice.

If there is a true shortage of ice melt, while unusual, I can see where the Property Manager is trying to offer a suggestion for unit owners to help themselves if they can who to prevent ice dams and slippery walks. It may not be feasible for elderly folks to assist with ice melt but the Property Manager is likely just trying to be helpful. Again, the Board can control what types of communication is sent out by the Property Manager.

What is likely the real solution here is a combination of items, A.B.. First, the Board is made up of unit owners just like you and your neighbors. I am sure they want what’s best for the community just as you do. The snow and ice removal program for your association may not be adequate for the harshness and severity the community is experiencing this year. In some ways, that was unforeseeable. However, a better plan can be put in place for next year and maybe even the balance of this year although by the time the Board meets again, we can all be hopeful that the worst of winter is behind us. Propose that in addition to snow removal from streets and walkways, a roof treatment program be put in place as well. Have the contractor agree to perform weekly property snow and ice inspections and have his staff knock down icicles if necessary. If that scope of work is too much for this current contractor to handle, then the association will need to hire a new contractor. Of course, you can expect an increase to snow and ice removal costs which will likely cause an increase to common fees which is never a popular option. However, if the Board isn’t given the option to spend more on snow and ice removal no one should expect any more to be done.