DEFINE THE AREA OF RESPONSIBILITY
HOA and condo associations are generally obligated to reasonably maintain the common areas within the association. This often includes any private roads within the community, as well as parking lots, walkways, and sidewalks. In townhome communities, the common areas may also include driveways. In condominiums, the common area will include almost everything outside of the units themselves. Identifying the common areas and areas of maintenance obligation in advance will help the association and owners know who will be responsible to address snow and ice before it happens.
With the association’s area of responsibility defined, the association should then determine what is reasonable in terms of addressing snow and ice. In North Carolina, negligence is essentially the standard —what would a reasonable and prudent person do in the same or similar circumstances? This means that the association does not have to run out, at the first flake of snow or first drop of freezing rain, and put down salt. If the weather forecast calls for temperatures above freezing and sunny skies this would not be “reasonable.” However, if the weather calls for prolonged freezing temperatures, then taking action is reasonable. Best practices would call for an association having a written policy about when and how they will take action. This can include consideration of weather, amounts of precipitation, and cost.
One important note—an association is not obligated to plow a road or scrape a parking lot in every circumstance. It makes no sense to plow a road in the midst of a heavy storm that will cover up cleared areas as soon as they are plowed. In this circumstance, a reasonable and prudent person could decide that it makes more sense to wait to take action- even if the membership feels (and demands) otherwise.
CHOOSING A VENDOR
The association should also take a reasonable approach when it comes to selecting a vendor to help with snow and ice in the community. Communities located in the mountains may wish to have a yearly contract with a vendor, which calls for the vendor to come out on a pre-negotiated schedule to address roadways and other common areas. In areas where ice or snow accumulation is less frequent, the association’s maintenance person may be sufficient to put down salt or similar products to keep sidewalks safe. The association has wide discretion in deciding how to handle vendor selection, as long as the discretion is exercised in a reasonable, prudent manner. As in all other instances of vendor selection, the association should make sure it is using vendors who are properly insured, understand their contractual obligations, and who charge the association a fair rate.
Finally, any snow and ice policy adopted by the association should be clearly communicated to the membership. Ideally the policy will be distributed to the membership, included on any community website with important documents, and posted within common areas as appropriate. Frequently members will be surprised to learn that an area they thought fell under association responsibility does not, and communicating the areas of responsibility in advance can help those members plan to address winter weather on their own property.
As with so many issues in HOAs and condominiums, a little advance work will save confusion and scrambling on the part of the board and manager. If you have any questions about this issue or other community association related issue, please contact one of our community association attorneys in our Charlotte, Greensboro, Triad or Coastal offices.
Author: Harmony Taylor
Articles have been Reprinted with permission from Black, Slaughter, Black.
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