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Page 6 — Property Management Quarterly — January 2017
W hen entering into a lease
agreement, it is important
for a landlord to remem-
ber, a lease is more than
just a one-sided contract
by which the tenant agrees to pay
rent. A landlord, by way of the lease,
is agreeing to manage and maintain
the property in a manner that does
not create unnecessary risk of injury
to the tenant or the tenant’s quests.
Said differently, the landlord owes
a duty of care to any person upon
his property. The duty of care varies
based on a person’s status.
Under the Premise Liability Act,
there are three status levels: A tres-
passer, to which a landlord owes the
lowest duty of care (i.e., the landlord
cannot willfully or deliberately cause
harm to the trespasser); a licensee,
to which the landlord owes a higher
duty of care (i.e., the landlord must
act as a reasonable person in warn-
ing of dangerous conditions on the
property); and invitee, to which the
landlord owes the highest stan-
dard of care (i.e., the landlord must
exercise reasonable care to protect
the invitee from dangers of which
he actually knew or should have
known). Tenants are considered
invitees and, therefore, are owed the
highest standard of care. That means
that landlords or property managers
must take reasonable precautions to
ensure that tenants and their guests
are not endangered by the landlord’s
negligence in recognizing and elimi-
nating dangerous conditions.
In the winter months, the stan-
dard of reasonableness seems
to be exemplified because of the
increased poten-
tial for weather-
related injuries.
Though there are
an endless num-
ber of conditions
that create risk for
landlords, property
owners and man-
agers, the onset of
winter conditions
creates hazardous
conditions that are
not present during
warmer weather
months. By rec-
ognizing only a few of these winter
weather-related hazards you can sig-
nificantly reduce your risk. Below we
quickly review the important issues
of snow removal, habitability and
security.
• Snow and ice removal. The most
obvious of the winter dangers is
accumulating snow and ice. A Colo-
rado landlord is or should be aware
of the likelihood of snow or ice accu-
mulation and the dangers created by
this condition. Thus, a landlord must
make arrangements for snow and
ice removal as soon as reasonably
possible after its accumulation. Such
removal must include all common
areas, walkways and parking lots. If
a tenant were to slip and fall due to
the landlord’s failure to make rea-
sonable efforts to clear the snow, the
landlord may well be liable for any
injuries.
Also, due to the contraction and
expansion of concrete and asphalt
during the varying conditions of
sunshine and freezing weather, a
landlord must
be vigilant and
quickly repair any
dangerous condi-
tions created by
the shifting walk-
ways and park-
ing lots. Holes in
the pavement or
unleveled surfaces
are potential trip-
ping hazards that
create liability for
landlords.
• Uninhabitable
residential prem-
ises. During the
winter months, a landlord also must
consider water and heating. Under
Colorado’s Warranty of Habitability,
a residential premises is uninhabit-
able if it lacks, among other items,
running water and functioning heat-
ing facilities. Obviously, a landlord
should take precautions to prevent
water pipes from freezing. But if this
occurs and causes a water shut-off,
he will need take reasonable steps
to ensure that repairs are made and
running water is returned within a
reasonable amount of time.
The same is true with heating,
specifically if a tenant notifies the
landlord of a heating malfunction,
the landlord is responsible to take
reasonable steps to repair the heat-
ing system and return it to opera-
tional status within a reasonable
time.
Either the lack of running water or
the lack of heat may provide a ten-
ant an opportunity to terminate her
lease without penalty or, in some
cases, withhold rent to effect repairs.
It is possible under the Warranty of
Habitability for a tenant to be enti-
tled to damages including reduced
rental fees. Moreover, until the run-
ning water or heat is restored the
landlord is not legally permitted to
re-rent the space.
• Security measures. Criminal activ-
ity may increase during the winter
months due to the increased hours
of darkness. While landlords typi-
cally are not liable for third-party
criminal acts, there are circumstanc-
es in which a landlord can be held
responsible for damages.
Under the Premise Liability Act,
landlords are required to act as a
“reasonable landlord” would act in
the same situation. Thus, if a land-
lord is aware of the potential for
increased criminal activities, such
as because of the increased hours
of darkness, the landlord should
take steps to make the premises
more secure. This does not mean the
landlord must provide 24/7 security
patrols, but a landlord may consider
increased exterior lighting or, at
least, ensuring existing lighting is
functioning properly.
There are many hazards lurking
for landlords in the winter months;
but there also are many precautions
a landlord can take to reduce his lia-
bility exposure. Inspecting all leased
properties regularly, quickly remov-
ing snow and ice accumulation, and
ensuring the exterior including the
parking lot is adequately lighted are
small steps that can protect your
tenants and reduce your winter-
related increased risk.s
Legal
Donald
“Corky” Eby
Attorney, Robinson
and Henry PC,
Castle Rock
Rachel Glass
Law clerk,
Robinson and
Henry, and law
student, Denver
University