What is a Residential Snow Removal Contract?
Residential snow removal agreements are written contracts that outline the terms and conditions under which snow and ice from a residential structure’s driveway and walkways will be removed. These agreements are commonly signed by homeowners and service providers as early as late summer, and often no later than November 1st. Here in Wisconsin, "snow season" typically runs from November through April. Having an agreement in place ensures that the service provider has a commitment for X number of snowfall events and that it can invest money into equipment and staff as needed to handle its future obligations under the agreement.
These agreements are generally enforceable as long as they are supported by consideration and do not otherwise violate any statutory or common law prohibition. This means that each party is expected to uphold the deal’s terms by either providing the agreed-upon services or making agreed-upon payments. A homeowner who fails to pay for services may face the same types of lawsuits as if he or she failed to pay for any other type of goods or services. In addition, a service provider who fails to provide the agreed-upon services may be liable for breach of contract and may also be investigated for insurance fraud if the provider submits an insurance claim to a homeowner’s insurance company for snowfall or icy conditions even though they do not exist or were not caused by an agreement violation .
So why is a residential snow removal agreement important? An agreement can protect the consumer by setting forth the terms of the deal and reciting any relevant limitations on the service provider’s liability. It can give the service provider the assurance of a steady stream of income so it can acquire the equipment and personnel needed to timely handle the especially heavy snowfalls that can occasionally occur. And, it can make clear to all concerned that there are limits on the extent to which a service provider is required by law to go when removing snow from a residence. It also gives the homeowner notice of his or her obligations and limitations when requesting snow removal or, for that matter, seeking to contract with a service provider in the first place.
A residential snow removal agreement can also protect service providers by setting forth the terms of the deal, including how payments will be made and the extent to which the service provider can expect to be compensated for hazards beyond its control. For example, what happens if the service provider’s work must be redone because a tree fell on the driveway after the service provider completed its work? What happens if the homeowner’s car was stuck outside after the snowfall and the service provider inadvertently damaged a tire in the process of pushing the car out? The agreement can address these contingencies and set compensation terms, if any, for each circumstance.
Basic Components of a Snow Removal Contract
The following are the key elements of a snow removal contract:
- Scope of Work- This entails the actual work done by the contractor to perform the snow removal services on behalf of the homeowner, including the duties of the snow removal contractor regarding salting and sanding (if any) and whether shoveling is included or not. It also addresses whether snow removal services to be performed include the homeowner’s driveway, walkway, and stairs and the frequency of the snow removal services.
- Duration- How long does this snow removal contract cover? Is it for seasonal snow removal services or is it for the calendar year?
- Price- The price to be paid by homeowner(s) for the snow removal services. This is typically a lump sum price or "flat rate fee" that is either subject to increase every year in accordance with the Consumer Price Index or other factors. It can be a sliding price based on the volume of the snow fall. Or it can be a monthly service fee regardless of snow fall. Some snow removal contracts even base the price on when the snow removal work is performed or the time of day.
- Payment- How and when does the snow removal contractor get paid? Does the contractor get paid upon the signing of the contract, at the end of the season, or monthly? Homeowners should also confirm whether the snow removal company accepts credit cards, checks, cash, or requires direct deposits. On occasion, it has been known that some snow removal companies will not perform snow removal work unless the homeowner pays a large percentage of the snow removal price in advance. Be wary of such arrangements as homeowners will never have a remedy to recover any advance payments.
- Scope of Service- The frequency of the snow removal services, whether there are any exceptions, whether the snow removal contractor is obligated to perform the snow removal services regardless of the weather conditions ("Force Majeure") and what happens if the contract is terminated mid-season by either the homeowner or the snow removal contractor.
Legal Issues for Residential Homeowners
Before signing a residential snow removal agreement, it is imperative for homeowners to consider the legal aspects of such an agreement.
Liability
The homeowners should analyze the snow removal service agreement to see who is responsible for slip/fall accidents. Under common law, landowners owe a duty of care to all visitors invited onto their property and third-party snow removal services may be found liable for not performing services in a reasonable and safe manner. On the other hand, snow removal services may try to limit their liability through waivers. Homeowners should be cautious of non-negotiable agreements from snow removal services, as they may be infringing on statutory rights provided for landlords or tenants under the Common Interest Community Management Act, which include the following:
A snow removal agreement generally contains an agreement to indemnify the snow removal service for any acts, errors or omissions of the snow removal service in the performance of their duties. It is for this reason that the snow removal service carries workers’ compensation insurance for its snow removal employees. A homeowner should check the residential rental unit to verify that it is covered under a general liability policy.
If a third-party snow removal service has agreed to perform snow removal services under an exclusive use common element, maintenance costs are collected from the owners of the unit(s) that have the exclusive use common element. However, if an owner under the condominium documents or other written agreement has the exclusive right to install a snow removal service, the owner will generally be responsible for maintenance costs associated with the snow removal service.
A deed-restricted community placing their snow removal services under the control of a snow removal service not affiliated with the community will need to consider whether the snow removal service is a common interest community and if so, what authority it has to require the snow removal service to conduct services. All common interest communities must follow the requirements of the Colorado Common Interest Ownership Act (CCIOA) and either the provisions of the Declaration or the association bylaws in hiring a snow removal service. Homeowners should pay careful attention to who will end up paying the bill for the snow removal service including, potential for increased assessments for the owners with no ability to vote against the contract.
In addition, not all snow removal services are created equal. For snow removal services located on the same site as the residential rental units, the snow removal service is generally subject to the legal and financial restrictions of the Common Interest Community Management Act and must follow the procedures for hiring an independent contractor and the terms of employment. Third-party snow removal services are subject to the Colorado Revised Statutes 8-40-202 which regulates wage payments and penalties for failure to timely pay wages. Snow removal employees who are provided with housing and are further deployed in the performance of these duties should also be considered in the snow removal workers compensation insurance.
Homeowners may be interested to know that if a third-party snow removal service wins a snow ball fight, it will be having a snow day!
Selecting a Snow Removal Company
The first step in getting the right snow removal service is using a licensed and insured snow removal professional who has the right equipment to perform the work. You will want to avoid using a contractor who does not provide you with proof that they are licensed and insured.
Not all snow removal services are created equal. While hiring a commercial snow removal service is a good alternative during a snowstorm or ice event, you should consider contracting separately with a commercial snow removal company or a private snow removal service for the Homeowners Association (HOA) areas and private access roads in particular. These types of services can be found online or through the service providers used by other businesses in your area.
Make sure that the snow removal service you hire has looked at your property and has seen the area that needs to be cleared free of snow or ice. The prospect of earning a little extra money can make some people perform the work under circumstances where it is just too dangerous , such as when severe weather is in progress.
Schedule the service to perform the work on your property at some point following the snow fall or blizzard where it is safe to do so. It will then be easy for the snow removal service to do the work.
Get everything in writing. While you may be working with a local service provider, ask for a written contract. The written agreement should include the service to be performed, the cost, the time expected for completion, and the person to contact in case of emergency.
Problems to Avoid and How to Manage Them
There are several common mistakes that homeowners make when entering into snow removal agreements:
- Choosing the lowest price. Everyone wants to save a buck, but no one wants to be the owner of the home with the snow mound across the driveway that becomes the nuisance to the township. Instead, understand the value of a homeowner snow removal agreement and budget your dollars accordingly rather than taking the lowest bid without regard to the service being provided.
- Undertaking snow removal as the "Hobby horse" for the contractor to provide "additional" services. Many a snow removal contractor provides many other services to homeowners , but plows only when there is enough snow to justify doing it. Your driveway may not be on the top of the contractor’s "to do" list because it isn’t so very important to you. At least one homeowner has sued a snow removal contractor where the contractor refused to remove snow on Christmas Day. Avoid these problems by having a clearly defined scope of work in your winter service agreement that sets the parameters for the contractor’s obligations and your expectations.
- Over-relying on experience with the contractor of the past. While your contractor may have done a nice job removing snow in the past, you can’t assume that your neighbor’s drive will be at the top of their "to do" list when there is a big snow storm. Have a clearly defined schedule in your winter service agreement and avoid the ire of those who expect to have their drive way cleared first and soonest.
- Allowing the contractor to control the timing and scope of their services at your home or business. You can control the timing and scope of the services you buy if you have a written winter service agreement that clearly defines the time of service, who performs the service, what happens when there is no snow, who pays for salt and the cost of any salt is pre-agreed.