Retail Times has teamed up with business law firm, DWF, to launch a legal advice column for retailers. In the first edition, Hilary Ross, head of retail at DWF, explores the responsibility for clearing common areas around stores from snow and ice and provides advice to retailers to protect them from blame in the event of an accident on the property’s grounds
Having battled with treacherous conditions in recent winters, the risks posed by icy conditions have become a very real concern for retailers, especially with a seasonal rise in the number of customers expected to pass through the doors. With a question mark over whose responsibility it is to clear outdoor areas surrounding a property – landlords’ or tenants’ – it can often be a grey area for retail tenants.
One of the main issues, which often causes confusion between tenant and landlord responsibilities is when there are parts of an estate that are retained in the ownership of the landlord – this is often the case when there is more than one tenant using common areas. In such cases, landlords will usually retain control of the estate areas.
In this case, while a standard lease is unlikely to contain any reference to ice and snow clearance as a specific service, it is generally the case the lease will contain a ‘sweeper’ clause. This type of clause will oblige a landlord to provide services of any kind in the interests of good estate management. Whether the management of ice and snow can fall under such a clause depends very much on the individual circumstance.
Where a property is let as a whole to a tenant, then it is unlikely the landlord will have any service obligations in the lease. While there may be no specific mention of snow and ice clearing responsibilities in a lease of this kind, the general maintenance obligations are likely to cover such works.
A commercial lease will often require compliance with statutory obligations in relation to the premises including those set out in the Health and Safety At Work Etc Act 1974 (which deals with a plethora of issues in addition to property and, whilst considered relevant, is not discussed in this article) and the Occupiers’ Liability Act 1957.
So, in light of the fact landlords may not have considered their duties in relation to common areas, such as car parks, now is the time for retailers to:
- Review their leases to establish who is responsible
- If it is their landlords’ responsibility, establish with them how and when these duties will be performed and to whom matters should be passed on to in the event of non-compliance or exceptional circumstances
- Send out reminders of the procedures that should be followed at every store to managers
- Similarly, if the duty falls to the store managers, give them clear instructions
DWF LLP is one of the fastest growing business law firms in the UK. It offers a full range of services to both businesses and private clients with teams specialising in corporate, finance and restructuring, litigation, real estate, people, insurance and private client and family law.