“Let It Snow, Let It Snow, Let It Snow…But Should Someone Else Be Clearing it?”

Winners, shopping in Calgary

Winter has made its early debut. The snow has begun falling and the salt trucks are already covering the roads (and our cars), and it’s not even December! Despite the bleak forecasts, people are out and about in large numbers, especially in light of the approaching holidays. With the snow comes the ice, and shopkeepers and property owners alike are getting their own shovels and salt stashes ready to clear their walkways and sidewalks for their customers and tenants. Along with the bad weather also come the questions regarding a property owner’s or lessee’s obligations to a tenant or customer to create a safe, and ice or snow free, place to come and go. It’s best to have a plan of action with regard to your property before the bad weather hits and understand your duties to those visiting your property during the winter season. If you’re a landlord, business owner or retail lessee, consider the following:

Landlord/Tenant Obligations

Generally, a landlord has a duty to exercise reasonable care to keep common areas held in the landlord’s control in a safe condition for their tenants, as well as recognize changing conditions and remedy them as they arise. This is especially an issue when the weather turns for the worse. Landlords need to be aware of potential issues as the snow and ice starts to accumulate, keeping on hand the proper materials to keep the walkways clear and safe and be cognizant of problems as they arise so they are fixed in a reasonable manner and within reasonable time.

Business Owners/Lessees

For tenants leasing a retail space, it is important to first look to your retail lease to determine exactly who is obligated, if anyone, to clear and salt the walkways and storefront in bad weather such as snow and ice. If your business or property sits on a municipality owned walkway or roadway, look to your city ordinances to determine whose obligation this may be in inclement weather. Determining whose responsibility it is to take action when winter hits is the first step in preventing injuries on your premises as well as liability for yourself or your business. Whether you’re a retail landlord or tenant, consider whether you need to incorporate language into your lease that speaks to duties with regard to snow and ice if these obligations are not clear.

If your business, like many others, clears and salts its sidewalks and parking lots to encourage people to come in despite the wintery conditions, it is important to have a consistent policy in keeping your premises clear and as safe as possible. With a change in Kentucky law over the last 5 years, even if it is obvious to your customers that weather is poor and the sidewalks slick, the entity occupying the property could still face liability if it doesn’t ensure the care towards its premises is reasonable under the circumstances.

By addressing these potential issues early, landlords, business owners and lessee’s can reduce the possibility of incidents on their premises and injuries to their customers or tenants during the winter season. If you are a landlord, retail owner or tenant and have questions about your obligations, contact the attorneys at McBrayer today.

BMacGregor

Brittany MacGregor is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at bmacgregor@mmlk.com or at (859) 231-8780.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

Reading The Writing On The…Yard? Regulating Political Signs

Many local governments have ordinances on the books that regulate the number, size, location, and duration of political yard signs. However, many of these regulations probably do not pass constitutional muster and are not enforced. The difficulty with enacting yard sign regulations is that the signs constitute political speech which is one of the most precious and protected forms of free speech guaranteed by the First Amendment of the United States Constitution. Courts across the country have consistently ruled that political speech cannot be regulated more stringently than commercial speech. For example, a local ordinance that sets time limits on how long political yard signs can be placed prior to an election and a time to remove them after the election are typically invalidated because other types of signs, such as real estate signs, have no durational limits. Similarly, ordinances that limit the number of political signs to no more than two per property have been struck down. Limiting the number of signs restricts free speech because the household residents may have different political viewpoints. Further, many election seasons are to fill the seats of many different offices, thus limiting the number of signs impermissibly limits the number of candidates that a property owner can support. Regulating the size of political yard signs is problematic too if the local sign ordinance limits political signs to a smaller size than permitted for other types of signs.
This does not mean, however, that local authorities have no power at all to regulate political yard signs. The governments may enact reasonable, content-neutral regulations pursuant to their police power to protect the public health, safety, and welfare. Thus, local ordinances can validly prohibit political yard signs on public property and within the public right of way. All signs over a certain size, regardless of content (and including political signs)may have to be set back from roadways and sidewalls and be constructed or anchored for legitimate safety reasons, such as to prevent them from being blown away, falling down or blocking the view of driveways and intersections.
Finally, other types of signs are protected as political speech even if not directly related to an election. As such, they are entitled under the First Amendment to remain in place subject to the same content-neutral regulations as for election yard signs. For example, signs expressing anti-war or other cause oriented beliefs such as views on abortion or gay rights have a fundamental right to remain in place for as long as the person expressing the belief wants to keep them in place, subject only to the limited, content-neutral requirements related to materials, method of anchoring, etc. that are in place for other signs displaying noncommercial speech.

 

Hands Holding Vote

 

CWestover

Christine Neal Westover is an attorney in the Lexington office of McBrayer . Ms. Westover has extensive experience practicing law in both the public and the private sector. The focus of Ms. Westover’s experience and area of practice is land use law since her assignment in 1991 as legal advisor to the boards, commissions and divisions of government within Lexington Fayette County on all matters related to planning, zoning and land use law. Ms. Westover has an extremely deep and broad expertise of the laws governing land use in Kentucky and the procedural and substantive complexities that underpin planning and zoning matters. She also has significant experience dealing with governmental divisions such as Building Inspection, Code Enforcement and other administrative bodies due to their regulatory authority in land use matters. Ms. Westover can be reached at cwestover@mmlk.com or (859) 231-8780, ext. 137.

This article is intended as a summary of  federal and state law and does not constitute legal advice.