“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.

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A Slippery Slope for Boat Slips

What happens when an existing condominium property regime is found to be invalid? Well, the Louisville Yacht Club recently encountered that exact problem. The case, Steenrod v. Louisville Yacht Club Ass’n, Inc.,[1] is one which Kentucky boat owners and condominium association members should be familiar so as to avoid similar problems.

In 1984, a “Master Deed, Declaration of Condominium, Horizontal Property Regime of Louisville Yacht Club” (Master Deed) was executed and filed of record by its developer, Louisville Yacht Club, LTD. The Club consists of a boat marina and ancillary property located on Pond Creek on the Ohio River in Oldham County. Pursuant to the Master Deed, 158 individual “Boat Slip Units” were created as part of the marina and were defined as “a part of the condominium property which is subject to private ownership.”

Kentucky has a specific set of requirements, known as the Horizontal Property Law, for the creation and establishment of a condominium property regime. To be valid, a proposed regime must comply with various statutory mandates; specifically, every condominium property must consist of two types of real property: (1) property owned in common by all owners (defined as the common elements) and, (2) property owned exclusively by one owner (defined as a Unit). Thus, purchasers of condominium units receive a fee simple title to a Unit and an undivided interest in the common elements. At the Louisville Yacht Club, purchasers received a Boat Slip Unit, held in fee simple, with an undivided share in the common elements such as the dock and clubhouse.

A dispute arose between the Louisville Yacht Club Association and a Boat Slip Unit owner, Ralston Steenrod, after the association began imposing fees for dredging operations along the marina. Ralston argued that the association had no authority to assess any type of fees because the Yacht Club was not a valid condominium property regime. Litigation ensued.

According to the Kentucky Court of Appeals, the Boat Slip Units were, in fact, not Units within the definition of the applicable statute, KRS 381.810(1) and, therefore, could not be considered part of the condominium property regime under the Horizontal Property Law.

KRS 381.810(1) defines a “Unit” as:

An enclosed space as measured from interior unfinished surfaces consisting of one or more rooms occupying all or part of a floor in a building of one or more floors or stories regardless of whether it be designed for residence, for office, for the operation of any industry or business, for any type of independent use or any combination of the above uses, provided it has a direct exit to a thoroughfare or to give common space leading to a thoroughfare.

(emphasis added). Based upon the plain language of the statute, the Court of Appeals concluded that a boat slip does not qualify as a Unit – it does not consist of an enclosed space nor does it have rooms.

In 2011, the Kentucky Condominium Act (KRS 381.9101-KRS 381.9207) became a supplement to the Horizontal Property Law. Under the supplement, boat slips can be construed as a condominium unit. The Kentucky Condominium Act, however, applies retroactively to condominiums created before its effective date “only to the extent of events or circumstances occurring after January 1, 2011.” In the Steenrod case, the events and circumstances that led to the filing of suit occurred prior to January 1, 2011, so the supplemental law is inapplicable.

The ramifications of Steenrod are murky, at best. Because the Master Deed and Plat used to create the condominium property regime were rendered invalid, just what interest the Boat Slip Unit owners now possess is unclear…further litigation or action from the Kentucky Legislature may be necessary to make this determination. According to Judge Maze in his Concurrence of the decision, “the potential effects of this decision will likely produce chaos for the entire membership of the Louisville Yacht Club Association and possibly other similar organizations…[w]hile the law is clear on this point, the result leaves the status of the Yacht Club and similarly situated clubs in a great deal of uncertainty.” It is clear that the Louisville Yacht Club Association no longer has the authority or power they once thought they did and, as Judge Maze points out, they “may also have to be re-organized under the new Kentucky Condominium Act if that is possible.”

Boat slip owners may very well find themselves in unchartered waters when the time arrives to sell or transfer their unit if it is organized as part of a condominium regime. If you are such an owner, or a member of an Association similar to that of the Louisville Yacht Club, and would like to discuss your ownership rights, contact a McBrayer real estate attorney today.

[1] Steenrod v. Louisville Yacht Club Ass’n, Inc., 417 S.W.3d 234 (Ky. App. 2013).

CRichardson

Christopher A. Richardson is an associate at McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Louisville, KY office. Mr. Richardson concentrates primarily in real estate, where he is experienced in residential and commercial closing transactions, landlord/tenant relations, and mortgage lien enforcement/foreclosure. Mr. Richardson has closed innumerable secondary market and portfolio residential real estate transactions and his commercial practice ranges from short-term collateralized financing and construction lending to development revolving lines of credit. He can be reached at 502-327-5400 or crichardson@mmlk.com.

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