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Dec 7, 2009 | Article  Bradley Chaplick

Snow and Ice Removal - a Warning to Landlords

Speaking to all of the landlords and tenants in Ontario, the recent case of Montgomery v. Van clarifies the duty to remove snow and ice.

In this case, a landlord was sued by his tenant when she slipped on the icy walkway leading to her basement apartment. The case raised an important question of law: What is the effect of a lease clause asserting that the tenant is responsible for clearing ice and snow?
 
The legal responsibility is covered by the regulations to the Residential Tenancies Act, which place the responsibility on the landlord to ensure that exterior common areas are free of hazards, including unsafe accumulations of ice and snow. Also, a lease clause is void if it is “inconsistent” with the Residential Tenancies Act.
 
In this case, the lease said that “tenants are responsible for keeping their walkway and stairway clean (including snow removal).” After the tenant sued, the landlord, in his defence, sought to rely on the lease and brought a pre-trial motion to determine whether the snow removal clause was valid.
 
In the court of first instance, the landlord was successful, as the motions judge accepted the landlord’s argument that, “landlords may fulfill their statutory obligations by delegating snow removal tasks to others.”
 
However, the lower court’s decision was overturned on appeal. The Ontario Court of Appeal provided that “it cannot be a term of the tenancy that the tenant complete snow removal tasks.” In order to be valid, a contract requiring the tenant to clear away ice and snow must be severable from the tenancy agreement. In other words, it must be able to stand alone as if it were a separate contract. 
 
In the present case, the clause was too vague and did not specify which sections of the walkway the tenant was responsible for. The court went on to say that the clause represented, “nothing more than an impermissible attempt by the landlord to avoid his statutory obligations.” The court went on to strike out the portions of the landlord’s defence that relied on the snow removal clause. Thus, as far as the lawsuit was concerned, it was as if the lease said nothing about snow removal.
 
For both landlords and tenants, Montgomery v. Van should serve as a warning. Clauses purporting to contract out of a landlord’s statutory responsibility must be carefully drafted, or else they will be void. In my view, this case would also apply to landlords of condominium units, especially where the unit owners are responsible for snow and ice removal.

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Bradley Chaplick

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