Message from the President
Notes from the MAR Legal Hotline
Michael McDonagh, MAR General Counsel
Q. My client owns a rental property and insists that he has no responsibility for removal of snow except for clearing the sidewalks as required by a municipal ordinance. Is he correct?
A. No. Even though there have only been a few minor snow storms so far this winter, the issue is still very relevant. The usual rule is that it is the responsibility of the homeowner or landlord to keep means of egress free of snow and ice. The State Sanitary Code provides that, “the owner shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice.”
If the residence has its own means of egress, meaning that it is not shared with other occupants, the landlord and tenant can agree to allocate the responsibility of maintaining such egress free of snow and ice to the tenant. Therefore, in situations where there is a single or multi-family home and the occupant has its own exclusive means of egress, be sure to review the lease to determine who is responsible for keeping exclusive means of egress clear of snow.
Q: As a property owner, do I have a legal obligation to remove snow and ice from my property?
A. Yes. All Massachusetts property owners have a duty to use “reasonable care” for the protection of visitors, and are legally responsible for the removal of snow and ice from their property. In terms of liability, homeowners should be aware of the 2010 SJC ruling of Papadopoulos v. Target Corp. That case expanded the duty of property owners to remove snow and ice from their property and definitively held that Massachusetts property owners have a duty to use “reasonable care” for the protection of visitors, and are legally responsible for the removal of snow and ice from their property.
The Court did not define “reasonable care,” and the duty of the property owner will depend on the specific situation. It is recommended that every property owner should take are to do the following: (1) review insurance policies to be sure that there is adequate coverage; (2) determine whether contractors or others hired to remove snow and ice have insurance; and (3) be vigilant when there is newly fallen snow, melting or freezing. If complete clearing is not possible, warning signs may be appropriate. Clients that have specific questions regarding their duty to clear snow should consult their attorney.
Q: I am thinking of incorporating my business. What do I need to do?
A. There are several steps that you will have to take in order to incorporate your real estate business. First, you will have to be sure that at least one of the officers (if a corporation) or partners (if a partnership) is licensed as a broker. Second, you’ll have to either register with the Massachusetts Secretary of State as a Massachusetts entity or a foreign entity doing business in the Commonwealth. More information on how to incorporate can be found here: https://www.sec.state.ma.us/cor/.
Q: Is there anything that I need to do with the Division of Professional Licensure?
A. Yes. In order for an entity to engage in real estate brokerage, that entity must be separately licensed. Additionally, one of the officers in the corporation must be licensed individually as a real estate broker. The statute refers to this individual as the “responsible broker” and the licensing Board commonly calls this person the “broker of record” for the corporation. With partnerships (both general and limited) one of the partners in the partnership must also be licensed as a broker before the partnership can become a partnership broker. The Board also refers to the partner as the “broker of record” for the partnership.
Q: I understand that the recreational use of marijuana is now legal in Massachusetts. Does a landlord have to allow people to smoke or grow marijuana in rental properties?
A. No. As written, the law allows for landlords to prohibit the smoking of marijuana on or in their property, but owners should be sure to check the language of their lease agreements and may want to specifically address this issue. Just as a landlord may prohibit smoking of cigarettes in an apartment, they may also prohibit smoking of marijuana. Additionally, an owner may prohibit the cultivation of marijuana as well. It is important to note that although legal under state law, marijuana remains a Schedule 1 illegal substance under federal law. Up until this point the federal government has taken the position that it will not enforce federal law in those states that permit recreational marijuana usage. However, there is no guarantee that they will keep this position in the future as more and more states change their laws to allow for the use of marijuana.
Q. Did the entire marijuana law get postponed?
A. No. You may have heard about the legislature postponing the start of the recently passed marijuana legalization law. The legislature, however, only postponed the implementation date of the retail store openings. The rest of the ballot initiative remains unchanged. This is important to keep in mind for any upcoming new tenancies.
You can read more about the impacts of the new marijuana law on real estate in our blog.