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NYC Sidewalk Law Raises Stakes for Out-of-Possession Property Owners

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Landlords can require tenants to be responsible for sidewalk winter conditions per the lease agreement, but the NYC sidewalk law ruling of 2019 demands caution.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.

But a recent New York Court of Appeals has shaken that idea and changed NYC sidewalk law pertaining to landlords’ potential liability.

A Plaintiff Falls on an Icy Brooklyn Sidewalk

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.

Whether that NYC sidewalk law ruling, which was made in October 2019, will govern all cases going forward isn’t clear. But what is clear is what landlords should do now.

Reducing Your Sidewalk Liability

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 if tenants 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 mandates tenants:

• 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)

Ask 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.

Get a Commercial Property Insurance Quote

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.

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