Must landlord maintain access to property?

[redhawk2005]

I rent a small house in Upstate New York, and we just had a severe winter storm with heavy, wet snow that caused the trees to bow down, blocking access to the road leading to my house. The road is private, and shared with 4 other homewowners, all of them weekend residents, and I am at the end of the road. At this point, I am completely blocked in, and my phone service is out, but I am able to connect to the Internet through cable. Because I am severely disabled, I cannot get to any of the neighbors houses to use their phone, as most of my neighbors are too far away, but I am hoping the closest one will be here as he is usually a regular visitor, and I can reach him, albeit with difficulty.

We just had a similar storm three weeks ago which also knocked down trees, blocking the road, and my landlord hemmed and hawwed and said he couldn’t do anything about if for at least a week, and that I should have to go out myself and knock the snow off the branches, or wait for the snow to melt, which it eventually did, causing most of the trees to rise up again. Usually on the very rare occasions when this happens just knocking the heavy, wet snow off the trees will cause them to rise eventually, unblocking the road, but I still had to remove several small trees that had fallen altogether, and knocking the snow off or clearing trees is extremely difficult and painful for me to do. He insisted I get the guy who does the snowplowing (at my expense as per the lease) to remove the tree limbs, but I doubt he will do this unless I pay him a lot of money, which I don’t have, and at this point I can’t contact him unless he decides to pay me a visit. My landlord’s wife has previously insisted that it was my responsibility to remove any downed tree limbs, though it does not say this in our original lease (which has expired, so I am now a month-to-month tenant) and I refused to so. I fully expect a flat-out refusal on their part this time, since they have had a chance to discuss this. I am planning to move in the summer, but I am still worried about being evicted, as I would prefer to move at my own convenience.

I am wondering what responsibility my landlord has to remove snow off the tree limbs, clear downed trees, or anything else to maintain access to the property, and whether lack of access is considered an emergency situation that has to be rectified immediately. Is there a specific law that covers this issue? If he refuses to do it, can I hire someone myself and deduct it from the rent?

[Downtown]

If these services were not included in original lease cannot expect now. Also as a MTM you run the risk of pissing off LL and getting 30 day termination notice.
Have you talked with neighbors or local church groups to help you out in this.

[Aubergine]

Whose property is the road on?

[redhawk2005]

Thanks to everyone for responding.

The road is private and cuts through the property of 5 homeowners, all of whom use it for access, one of whom never pays for anything. I am at the very end of the road, and as of this writing, only the last section starting from my nearest neighbor's driveway going to my house is still blocked by trees--someone came and cleared out the rest early this morning. Access to my neighbor's house is cleared, but some of the trees remaining to be cleared are within the boundaries of his property, and the rest my landlord's property. It seems to me this ought to be a joint responsibility, with those of us at the end paying more than those at the beginning.

I need to tread carefully here with the neighbors as well, because they can just refuse to pay for snowplowing and leave me with the whole bill, as I will have no choice but to pay it if I want to get out. Further, my nearest neighbor already takes the burden of clearing the grass and brush on both sides of the road up to his property on his own shoulders, so I would feel ackward trying to get him to remove those trees. My plow guy stopped by this morning and told me two more neighbors haven't yet paid for the season, in addition to the one that never pays, and he might not be doing the road anymore until they do. He is going to come and cut me out later for a reasonable fee. Since this is a small town with an essentially useless government, getting the town or the local courts involved to redress any payment issues will likely be time-consuming and largely fruitless. I need to first know what my legal rights are, and then try to negotiate something that's fair for everyone even if I have to cede some of my rights.

[Aubergine]

Do you know anything about the legal arrangements that give the owner of the property where you live a right of way through the neighboring lands? These might include an express easement by deed and possibly some written agreement regarding maintenance. The first thing I would do would be to search in the county land records office for any deed or other instrument that pertains to the right-of-way.

It might be helpful to consider the general legal concept of an easement and what rights and duties go with it.

"The owner of the servient tenement [i.e., the property burdened by an easement] is under no duty to make any repairs to the easement absent an agreement undertaking this obligation. An easement imposes upon the owner of a servient tenement no obligation other than the passive duty of submitting to use by the dominant owner. The acquisition of an easement by grant or prescription carries with it whatever is essential to its enjoyment. Therefore, the duty, and right to make necessary repairs thereto, and to remove all obstacles to its enjoyment rests upon the owner of the easement."

Rasch, 1 New York Law and Practice of Real Property § 18:55.

Where several owners benefit from the easement, however, the rule may be different.

"The general rule is that, absent an express agreement, all persons benefited by an easement must share ratably in the cost of its maintenance and repair. (Allen v Greenberg, 21 Misc 2d 763 [Sup Ct, Queens County 1959]; People v Wittman, 205 Misc 1046 [Special Sessions 1954].) Thus, where each party retained title to one half the width of their common passageway, they were held jointly liable for its maintenance. (Brearton v Fina, 3 Misc 2d 1 [Franklin County Ct 1956].) As 1 Friedman, Contracts and Conveyances of Real Property § 4.9 (m) (5th ed 1991) explains, '[t]he dominant owner . . . has the duty to repair where he is the user,' in which event the servient owner's 'only obligation [is] to refrain from interfering with . . . proper use' of the easement; but the overriding principle is that '[t]he duty to repair . . . is on the user, being on the servient tenant when he is the user, and on both where the use is shared.'"

Cohen v Banks, 169 Misc 2d 374, 377 (Just Ct, Village of South Nyack 1996).

Before you get into a dispute with your neighbors or your landlord, you probably need to determine whose duty it is to maintain the right of way, as between your landlord and the other property owners.

<small>[ November 25, 2005, 02:45 PM: Message edited by: aubergine. ]</small>

[Aubergine]

The other important aspect of this situation is the extent of the landlord's obligations under the statutory warranty of habitability. Real Property Law section 235-b provides,

1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.

2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.

3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court;
(a) need not require any expert testimony; . . . .

If you read this statute strictly and literally, it could appear to impose a duty on a landlord to remove snow accumulations that create a hazardous or detrimental condition for a tenant. But in various cases involving snow removal, the courts have mentioned actual or alleged lease provisions that placed the burden of snow removal on the tenant, and have not identified them as being contrary to public policy.

[redhawk2005]

Thanks again, Aubergine. From talking to the neighbors I get the impression that they've had this dispute before with my landlord. I will check with the town and see how responsibility is apportioned. Just out of curiosity where do you find all this info so readily? I couldn't pin down much of anything on my own.