CREJ - Property Management Quarterly - January 2017
When entering into a lease agreement, it is important for a landlord to remember, 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 trespasser, 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 warning of dangerous conditions on the property); and invitee, to which the landlord owes the highest standard 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 eliminating dangerous conditions. In the winter months, the standard of reasonableness seems to be exemplified because of the increased potential for weather related injuries. Though there are an endless number of conditions that create risk for landlords, property owners and managers, the onset of winter conditions creates hazardous conditions that are not present during warmer weather months. By recognizing only a few of these winter weather-related hazards you can significantly 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 Colorado landlord is or should be aware of the likelihood of snow or ice accumulation 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 reasonable 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 conditions created by the shifting walkways and parking lots. Holes in the pavement or unleveled surfaces are potential tripping hazards that create liability for landlords. • Uninhabitable residential premises. During the winter months, a landlord also must consider water and heating. Under Colorado’s Warranty of Habitability, a residential premises is uninhabitable if it lacks, among other items, running water and functioning heating 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 heating system and return it to operational status within a reasonable time. Either the lack of running water or the lack of heat may provide a tenant 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 entitled to damages including reduced rental fees. Moreover, until the running water or heat is restored the landlord is not legally permitted to re-rent the space. • Security measures. Criminal activity may increase during the winter months due to the increased hours of darkness. While landlords typically are not liable for third-party criminal acts, there are circumstances 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 landlord 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 liability exposure. Inspecting all leased properties regularly, quickly removing 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.