This case involves a slip and fall at a residential condo complex in Utah. The condo complex has over 100 units, one of which is owned by the plaintiff. The plaintiff was walking to his unit from his car during a snow storm. There was a section of ice in the driveway and as soon as he stepped on the section, he fell to the ground, breaking his wrist. The condo complex provides plowing to both roads and driveways but does not sand the driveway. The trustee of the complex claims they do not sand the area because it is considered “exclusive use” and not a common area. The plaintiff contends the owner has exclusive use of the easement of the driveway, but the owner cannot “sell” or “own” the driveway. He therefore considers it a common area.
Question(s) For Expert Witness
- 1. Please discuss your background in setting safety standards as it pertains to snow and the building management's responsibilities in clearing the snow in certain areas to ensure the safety of the residents.
- 2. How do you determine exclusive use vs. common areas?
Expert Witness Response E-008278
I have 30 years of experience in professional property management and this case is within my expertise. The driveway is an area that all residents would have access to rendering it a “common area” and this is the responsibility of the property management team. It is surprising to me that they would not have taken precautions to prevent incidents such as the one in this case from occurring due to accumulation of snow and ice.
Expert Witness Response E-006040
I have managed properties in Mammoth Lakes , Victorville, California and in Las Vegas, Nevada and all of them have experienced snow/ice conditions. The one in Mammoth Lakes was a condominium (the others were apartments). All the areas outside the individual condominium owners’ units were maintained by the HOA as part of common area. Knowing that snow/ice conditions appeared regularly and that each individual unit owner could not be expected to sand or salt snow/ice common areas , the HOA was the party responsible for performing that maintenance for the safety of all individuals coming upon the property. The driveway the plaintiff used outside his unit is part of the common area. Since the driveway appears to have serviced his unit alone, he certainly had ‘exclusive use’ of the driveway (other homeowners could not use it), but he did not have maintenance or safety responsibilities for the driveway. More correctly, the HOA did have maintenance and safety responsibilities for this common area driveway. The plaintiff may have had ‘exclusive use’ of the driveway but, as a condominium property, each unit owner has only the ability to control/maintain the area within his/her individual unit. A common term is ‘paint to paint.’ All other areas are part of the common area and are the responsibility of the HOA. Furthermore, the HOA’s Covenants, Conditions and Restrictions (CC&R’s) should describe the home owners’ units, common areas and exclusive use in detail. Exclusive use is also applied to other condominium features. For example, the HOA can have a clause within its CC&R’s that says the tennis court or swimming pool is for the ‘exclusive use’ of unit owners. This is a common restriction that condominiums have so owners are not prevented from using or having these amenities over-populated by the guests of other owners. The pool and the court are for the owners’ exclusive use, yet the maintenance, repair and safety issues associated with these amenities are the HOA’s responsibility.