Monday, January 15, 2007

Question for the Lawyers Out There

I found on Fark an article which appears every winter in some form or other: an elderly, disabled woman faces a fine if she doesn’t shovel the snow off of her sidewalk. This particular incident took place in Denver, and it’s being touted as especially egregious because she’d already hired someone to shovel her walk clean, only to have city snowplows push more snow off of the street and onto her sidewalk. Furthermore, there are multiple snowy walks on her street, but she's the only one who's been cited.

Most cities have laws requiring homeowners to shovel and otherwise maintain the sidewalks in front of their homes. And here’s something I’ve always wondered: why are such laws not considered a violation of the Constitutional prohibition against involuntary servitude? If the sidewalk in front of my house belongs to the city, then maintaining it should be the city’s responsibility, not mine. And if the sidewalk belongs to me, then why am I not only required to let complete strangers trespass on my property, but to make sure said trespassers can trespass comfortably?

26 Comments:

Anonymous A Moose said...

Don't know, but the Town here specifically tells you to wait after the snowplows, and omiously says you'll get ticketed if you shovel then the plows come and cover it. They'll also nail you for putting more snow in the road, the blowers need to point towards the houses....

7:00 AM  
Blogger rhhardin said...

It's a tax that you get the option of paying with your own labor.

7:24 AM  
Blogger Anne O'Neimaus said...

I think the laws have changed during the last 20 years, so this may no longer be the situation. However, when I first moved to the Chicago area, I was informed of the following legal anomaly:

You were required to shovel your walk. If you did, and somebody slipped and fell, you were liable for not shoveling well enough.

On the other hand, if you did not shovel, you were a scofflaw, subject to some (minimal, rarely-enforced) fine. But, when somebody slipped on your unshoveled walk, it was considered an "Act of God" - you were not liable.

7:28 AM  
Anonymous Anonymous said...

I suspect that the answer has to do with easements, but I'll leave it to someone more versed in the law to offer a more complete explanation.

8:06 AM  
Anonymous A Moose said...

Hey, it's working!! I at least got "Political Buttons" today, and clicked through for you. Now I need to go wash an disinfect the hard drive.

9:37 AM  
Anonymous Anonymous said...

They are easements. Some property owner way back a when arranged an easement with the government (perhaps in exchange for a right to hook up to the gov't water and sewer services, perhaps to get a re-zoning, perhaps as a (compensated) eminent domain taking).

If you don't like sidewalks, there are plenty of properties available to lease or buy that are not subject to sidewalk easements.

In my case, the landlord is trying to force us, the tenants, to shovel the sidewalk for them. I don't think this is legal under local landlord tennant law, but we are shovelling for them anyway as a way of having the landlords in our lives as little as possible.

Involuntary servitude?! N***a please!

11:57 AM  
Anonymous A moose said...

In my case, the landlord is trying to force us, the tenants, to shovel the sidewalk for them. I don't think this is legal under local landlord tennant law, but we are shovelling for them anyway as a way of having the landlords in our lives as little as possible.

Easement means they can come in and dig it up, doesn't necessarily mean you have the obligation to maintain it, which I think is Jennifer's point.

Speaking to the above, if your lease says you have to do it, you have to do it, typically. I've not seen any place that says you cannot have a lease clause making the tenants responsible for maintenance of building access.

Full disclosure is that I am one of those landlord dudes, but I'm one of the nice ones...

1:49 PM  
Blogger Jennifer said...

Easement means they can come in and dig it up, doesn't necessarily mean you have the obligation to maintain it, which I think is Jennifer's point.

It is.

2:16 PM  
Anonymous smartass sob said...

You'll be happy to know when I clicked on the chickens post preceding this one, nothing but various chicken ads showed on your page.

6:43 PM  
Anonymous Anonymous said...

Easement means they can come in and dig it up, doesn't necessarily mean you have the obligation to maintain it, which I think is Jennifer's point.

Depends on what the terms of the easement are. I never read a sidewalk easement, but presumably they are written down somewheres like the ones I have read relating to power lines.

maybe Jennifer is saying that the remedy of the municipality should lie in civil contract court, rather than under its criminal authority, but this potential objection, while interesting, sounds kind of strained to me.

It may also be that sidewalk easements do not spell out the duty of the landowner to keep sidewalks clear, but rather that this duty has been inferred from long, uniform custom, estoppel and laches. libertarians don't always like that part of the contract law, but there is such a thing as implied terms and course of conduct -- and those kinds of arguments make more sense in the context of a contract that has been around as long as a typical easement contract.

Speaking to the above, if your lease says you have to do it, you have to do it, typically. I've not seen any place that says you cannot have a lease clause making the tenants responsible for maintenance of building access.

I guess it depends on where you own the property:
http://www.lois-en-ligne.gouv.on.ca/DBLaws/Regs/English/980198_e.htm
(see section 26(1).

Personally, I don't have a written lease. if I want to go to the proverbial mat with my landlords on snow removal, then my commonsense remedy is to leave and make them find a new tenant who will clear the snow. I wonder how this would play out in my case. rental market getting kind of soft here.

Whether you can delegate snow removal in common areas to your tenants or not under local law, hopefully you understand that there are repairs and maintenance that you cannot delegate. That is pretty much true everywhere.

5:58 AM  
Blogger Anne O'Neimaus said...

Ultimately, snow-removal from sidewalks is probably a matter of municipal ordinance. Ordinances allow the establishment of vehicle parking fees, special property assessments, and property-maintenance requirements.

Jennifer's question is whether an ordinance can require maintenance of unowned properties, as well. I think in the case of an actual easement, it is still your property, so no question.

Where I live, the parkway (between the sidewalk and the street) is NOT my property, but the city's. If I cut down a tree from the parkway, The city will fine me, plus charge me for a replacement tree. However, I am still required to mow it, and remove weeds and debris.

I look at is as a "cost of living in the municipality" tax, like paying school taxes even though I have no children. I guess the logic (whether justified or not) is similar to the logic for special assessments for street repairs. They only assess those in the area, even though lots of people use the public streets.

A few years back, the city traffic engineer redesignated our street as a bus and truck route, despite our objections. Within a few months, the sewers at each intersection collapsed, requiring immediate repair. Only the poor schlubs who owned corner houses were assessed for these repairs (fortunately, not me; unfortunately, including a nice old retired lady on a limited fixed income). Since this was exactly what we had protested would happen if the designation was changed, I think the city should have been left holding the bag, here - but instead, it pushed the costs off on the poor residents, and did it very selectively, so as not to rile up the entire neighborhood.

8:49 AM  
Anonymous Anonymous said...

Where I live, the parkway (between the sidewalk and the street) is NOT my property, but the city's. If I cut down a tree from the parkway, The city will fine me, plus charge me for a replacement tree. However, I am still required to mow it, and remove weeds and debris.

I strongly suspect that the parkway is an easement as well.

It is possible to technically own something, and yet assign away at least most of the rights.

You may even own out to the centerline of the road, technically:

http://en.wikipedia.org/wiki/Public_road

(not only does this entry say that some public roads are by explicit easement, but also, the reference to public roads by "common law" is probably a reference to implied easements)

9:50 AM  
Anonymous A Moose said...

I guess it depends on where you own the property:

All I have to see is the "ca" on the end of the web address, dont' have to look at it even. Basically that means "If you're a landlord, you're pretty much bent over and fucked". I can see it very well that the landlord probably has responsiblities to diaper the family pets if you rent from them there, but the rest of the country is much more reasonable. Perhaps only approached by Montgomery Co, Merry Land, where a pregnant woman couldn't be evicted, so it created a class of women who would go on nine month rent free binges.

That said, anne is correct that most is buy municipal ordinance, or ordnance in the case of the woman on fixed income. However, Jennifer does bring up an intersting question, is it constitutional to require such?

The tree cutting, there are tree save ordinances all around which require permission, there are ordinances requiring that people maintain their property in a manner to not allow rats to breed, etc, but I'd have to see about the sidewalk thing. Basically, you have an easement which allows the public to cross, which is fine, but you dont' have to hold their hand I don't think. The mere fact that the city puts in a sidewalk now imposes a duty to maintain? If they took it out, there would be no duty, as there would be nothing to maintain. I would think the easement wouldn't specify maintenance, as you'd have to change it every time the conditions changed.

I do know that the threat comes from a municipal ordinance where I live

10:10 AM  
Anonymous Anonymous said...

That said, anne is correct that most is buy municipal ordinance, or ordnance in the case of the woman on fixed income. However, Jennifer does bring up an intersting question, is it constitutional to require such?

If the easement or implied easement or implied easement terms relating to the sidewalk would contractually require snow removal, then I doubt it would be considered a "taking" when a city or state passes a law that says you have to do it.

That is what I meant when I said that jennifer's argument was interesting but strained.

10:43 AM  
Blogger Jennifer said...

If the easement or implied easement or implied easement terms relating to the sidewalk would contractually require snow removal,

But can you really use the word "contract" when talking about government's laws? Unless I'm misinterpreting you, it sounds kind of like saying "if this city refuses to allow freedom of worship, that's not unconstitutional because when you buy property in this city, that contractually requires you to worship as the city dictates."

I'm not seeing how a city law that nobody can avoid is the same thing as a contract between individuals or organizations.

11:13 AM  
Anonymous Anonymous said...

But can you really use the word "contract" when talking about government's laws? Unless I'm misinterpreting you, it sounds kind of like saying "if this city refuses to allow freedom of worship, that's not unconstitutional because when you buy property in this city, that contractually requires you to worship as the city dictates."

I'm not seeing how a city law that nobody can avoid is the same thing as a contract between individuals or organizations.


To explain further, when the government regulates in a way that decreases the value of a piece of property, then it is often considered a "taking" under the Constitution, which requires that the property owner be compensated.

However, in order to even arguably be a "taking," the new regulation must decrease the value of the property was before the regulation happened. If there is no decrease in property value, then the appropriate compensation is zero. No "taking" in that case.

Now if a piece of real property is subject to an easement that contractually requires the land owner and her successors to keep that walk clear, then the municipal ordinance or criminal law or whatever you want to call it does not decrease the value of the owners land because it merely requires the current owner and future owners to do something they had to do anyway.

Now you could make the argument that the value of the land still goes down because a breach of the easement is always possible, and that it is better to have just civil liability, as opposed to both civil and criminal liability for the prospective easement breach. That is the argument I find strained. If you could show some specific evidence that the municipal ordinance really did lower property values, I think you'd have a shot. i think you would have a difficult time assembling the evidence of property value loss sufficient to prove your taking and demand your compensation.

I suppose there are other Constitutional claims, such as a due process claim or a wildly disproportionate punishment claim, but I think these are even less likely to succeed than the more obvious taking cause of action.

2:35 PM  
Blogger Jennifer said...

If you could show some specific evidence that the municipal ordinance really did lower property values, I think you'd have a shot. i think you would have a difficult time assembling the evidence of property value loss sufficient to prove your taking and demand your compensation.

Huh? I'm not talking about property values at all; I'm talking about being required by law to do actual physical labor (or pay someone to do it in your stead). And the fact that laws REQUIRE people to keep those walks clear is my entire point: that there exist laws requiring people to do unpaid labor or else face legal penalties. That strikes me as unconstitutional.

2:51 PM  
Anonymous Anonymous said...

And the fact that laws REQUIRE people to keep those walks clear is my entire point

And I am saying that if there is no sidewalk easement, or else the sidewalk easement did not require clearing, then you would have a point. the impact of the criminal reg would be viewed as a taking and you could arrange compensation from the government.

OTOH, if the easement requires you to clear the sidewalk already, then you are being required to do something by ordinance you are already required to do by contract. This is especially true if the violation does not require you to pay substantially more than they could require you to pay under the easement contract. It is not like you are being required to pay twice.

Hypothetical time:

let's say the city increased the penalty for not clearing the walk to 10 years in jail plus a $100,000.00 fine. Word of this draconian penalty would get out, and soon your land would go down in value and you would have to be compensated for the property loss by the government under the Fifth Amendment. I bet we agree on that.

I am just saying that when the ordinance is less punishing and basically duplicates the contractual penalty you would suffer anyway, your takings claims goes away, as will the amount of sympathy you would get from most judges.

You should also consider that your easement might say:
"property owner and successors promise to follow any reasonable municipal ordinances (now existing or to be enacted in the future) designed to ensure reasonable access across the easement."

It will be interesting if any other lawyers come out of the woodwork and agree with you on this, Jennifer.

3:10 PM  
Blogger Jennifer said...

Where is it written that "the Constitution does not apply if there is an easement"? Or, "the Constitution does not apply if there is a municipal ordnance that contradicts it"?

3:17 PM  
Blogger Anne O'Neimaus said...

In a former lifetime, decades ago, I did Title Search work for a Title Insurance Company. Easements were one of the things we specifically looked for, when analyzing the title to a plot of land.

The concept of easements, and the law that goes with them, predates the constitution. It is a holdover from British Common Law, the validity of which is specifically written into our laws as a "default setting".

I guess what Anonymous is saying, is: "If your property has an easement for the sidewalk, you need to check the terms of that easement." Easements and similar restrictions on property "stick with the land", and are automatically transferred. The corresponding obligations are implicitly assumed by the new owner, as part of the contract involved in transferring title.

The fact that most of us have never read the fine print on our titles - including the gory details of all easements, doesn't release us from those contractual obligations that we "purchased".

There are specific legal activities involved in getting rid of easements and property restrictions. When I was in that business, the most commonly removed restrictions were racial. A lot of property had been sold in the past with the restriction that black people were never allowed to reside on it. Since this restriction has been ruled unconstitutional, it's pretty much a slam-dunk to get it rescinded. However, no Title Insurance company will cover the Title until you get that restriction legally removed.

I found that to be an interesting aspect of property ownership, left over from before this country existed. Any owner of a piece of property can arbitrarily place any kind of restrictions (s)he wants on that property, as part of the (generally written) terms of sale. Thus, you could be inheriting contractual obligations that you have never seen, and have no idea about, which were made 10 owners ago.

I don't think the municipality can come along and impose an easement after the fact, without some sort of compensation - although it's tough to fight City Hall. However, in many cases, the original property was "bought" from the municipality or original developer with the restrictions that certain types of easements (water, telephone, power, alleys, sidewalks, etc.) are attached to that land.

Anonymous' suggestion is that we all are probably saddled with these contractual stipulations to our right to claim "ownership" of real estate. Even if we are totally unaware of them. I'm gonna have to check my deed, and backtrack the property through the county records, to see if the parkway and its obligations are in fact stipulated as property restrictions. It's a tedious, painstaking process to do a full Title Search on a piece of land.

4:26 PM  
Blogger Anne O'Neimaus said...

In terms of "reasonable compensation" for municipal impositions, we have recently seen some bad setbacks to individual rights. An Illinois city (I think Elgin) arbitrarily decided that a certain neighborhood was "blighted", and that they wanted to put some sort of Urban Development Plan in action, in that area.

As part of this plan, the city seized all property in the area, citing eminent domain. I think some minimal compensations was offered, but it wasn't much. Cities historically could do this when some sort of public works project (a new highway, a sewer system, etc.) is going in.

However, in this case the whole point of the exercise was to immediately turn the land over to a private developer who had somehow sold the city on a "plan". They would develop the property, then turn around an sell it to "more desirable" tenants, keeping all the profits (there might have been some sort of kick-back to the city in some form or another, like special transfer taxes or something). The original owners just got stiffed.

I believe this case got to the Supreme Court in the last few years. City Hall won.

4:38 PM  
Anonymous smartass sob said...

Regarding property rights and ownership I believe government operates under the rule that: if you can not take it with you when you die, you do not actually own it - you just get to pay taxes on it. (including one's own body) ;-)

Go by what people do rather than what they say - same thing with government.

5:31 PM  
Anonymous A moose said...

Oh no! Evil spawn of the Googlebots have infested thy website Jennifer!!! Someone didn't use protection!!

5:28 AM  
Blogger Jennifer said...

Those goddamned spambots have been plaguing my site from the beginning, Moose. But it used to be they'd only post on months-old threads. Lately they've been moving closer and closer to the present, though.

I am trying to find a way to disallow comments in old threads, but I don't think Blogger lets you do that; it's an all-or-nothing deal: either all threads are open for comments, or none are. I'm also thinking of disallowing the "anonymous commenter" feature, which should help with the 'bots but I don't want to make things too annoying for the actual humans posting here.

I do NOT want to go with the nuclear option of requiring people to either register, or take that "type the letters you see here" security test each time they post.

6:41 AM  
Anonymous A Moose said...

I do NOT want to go with the nuclear option of requiring people to either register, or take that "type the letters you see here" security test each time they post.

If we could get an IP, then a location, we could start talking about it over cell phones and the web, designating whatever area it was as an Al Dickhead hideout where they develop nuclear weapons. That could cause a spec ops team from Blackwater to be assigned to go wipe the area out. If that doesn't work, we could say that's where the Taliban have their stronghold, and, and, they kidnapped my wife...Morgan Fairchild...yeah, that's the ticket, and...

(to those who are too young to know what I'm alluding to here, thanks for making me feel very old)

5:08 AM  
Anonymous TC said...

Renters and howmowners have some differing rules.

I ran a hotel for 40 years, when it snowed we cleared the walks and drive, NEVER did we hand a shovel to a guest. I can't imagine renting to be any different. Do the renters, (most situations), mow the lawns, plant flowers, take care of general landscaping? MOST, no way! Same with condo owners as well The reason they own a condo or rent instead of buy is to get out of yard care!

BIG time snows are a major challenge, I care not where you live, if you get hit, it's gonna be a pain and that pain is a shared pain.

But with the Denver lady, the city should STFU and lend a hand. That is what good neighbors do for one another, NOT cause greater problems and challenges for their taxpayers. Well if ran the gawd daaumed place that is the way it would be!

It's one thing to tell a 20 something to get out and clear off the walks of 30" of snow fall, quite another to demand a 60 yr old to do the same.

All I'd ask is that you give us a call and request some assistance for reason.

11:15 PM  

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