NYC Sidewalk Law: Implications for Out-of-Possession Property Owners

Landlords can require tenants to be responsible for sidewalk winter conditions per the lease agreement, but be careful. Even if you don’t live in the building and delegate responsibilities for snow removal to a tenant, that doesn’t absolve you of all responsibility when it comes to complying with the New York City Sidewalk Law. Out-of-possession property owners need to take specific steps to ensure proper sidewalk maintenance in their absence.

Who Is an Out-of-Possession Property Owner?

New York defines an out-of-possession property owner as a landlord who has transferred control and possession of a property to a tenant. This means the tenant, not the landlord, is actively managing and occupying the property.

Legal Responsibilities and Risks

Even though the tenant is managing the property, the landlord still has legal liability. Courts have ruled that saying, “[tenant] was supposed to do that” isn’t a Get Out of Jail Free card.

Say you’re an out-of-possession landlord. To satisfy NYC sidewalk law, the agreement you have with your tenants specifies that they’re responsible for, among other duties, snow and ice removal from the sidewalks in front of your building.

For years, courts have held that shifting that responsibility to tenants insulated building owners from slip-and-fall liability, as well as other injuries related to the maintenance of the sidewalk in front of a building.

The New York Court of Appeals, however, changed NYC sidewalk law pertaining to landlords’ potential liability.

New York Court of Appeals on Landlord Liability

In a case that took decades to reach the New York Court of Appeals, the plaintiff sued the tenant, property owners and others after slipping on an icy sidewalk adjacent to a Brooklyn storefront.

The owners argued that their lease with the tenant transferred possession of the property to the tenant and required the tenant to keep the premises and the adjacent sidewalks in good repair and clear of ice and snow.

The lease was clear. But the NYC sidewalk law, the court ruled, says otherwise. The owners maintained that the “out of possession” defense protected them from liability. Lower court rulings seemed to agree.

But when the case reached the court of appeals, judges ruled that New York City Administrative Code §7-210 applied. The code states that property owners “shall be liable for any injury to property or personal injury, including death, caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.”

In short, landlords could no longer delegate liability when they delegated responsibility.

Preventive Measures for Property Owners

Most importantly for landlords, the court’s ruling expressly acknowledged that owners can contractually require tenants to maintain sidewalks. Owners can also mandate indemnification from tenants who breach those maintenance obligations.

In other words, landlords can require tenants to maintain sidewalks and handle snow/ice removal, as many out-of-possession landlords do. The key is to include specific requirements in their leases that require tenants to:

• Maintain sidewalks
• Handle snow/ice removal in accordance with New York regulations
• Comply with all applicable laws, codes, statutes and regulations applicable to the property
• Defend and indemnify landlord for breach of such obligations
• Maintain insurance covering tenant’s indemnity obligations under the lease
• Include landlord as an additional insured on such insurance for all liabilities arising out of tenant’s use of the premises (including abutting sidewalks)

Navigating Legal Challenges

Protect your interests by asking for a copy of the tenant’s insurance policy to confirm that you’re included as an additional insured on the policy. If you have any questions, ask your insurance broker/agent to review the policy to verify.

Ensure that the lease and any other legal documents specifically list the tenant’s responsibilities and that those responsibilities match NYC regulations. Don’t just mandate that the tenant must keep sidewalks and steps clear of snow and ice; list a timeline for those responsibilities that matches NYC regulations.

Note: We recommend having an attorney review all leases and legal documents.

Staying Compliant and Protected

In short, don’t assume that being an out-of-possession owner grants absolute legal protection against liability for anything that happens in your own building. Keep up with any changes in the law, and regularly consult with a knowledgeable insurance broker/agent about any changes in insurance.

If you have any questions about insurance or your current insurance policy, or if you would like a free insurance review, please call us at 877-576-5200.