Plaintiff Scott Valentine suffered injuries when he fell on ice or snow on the public sidewalk abutting the three family home owned by defendants Maximo and Ana Almanzar. The issue in Valentine v. Almanzar, 2017 N.J. Super. Unpub. LEXIS 1440 ( App. Div. June 12, 2017) was whether the defendant homeowners had a legal duty to remove snow and ice from this public walkway. Because the defendants rented two of the three units, whether a duty was owed depended upon whether the home qualified as a residential property or a commercial venture.
Defendants purchased this three family home in 1994 and had a mortgage on the property. They resided in one of the units and rented the other two apartments to nonrelatives under written leases. Defendants received rent totaling $3010 per month, which was used to pay the property’s carrying charges consisting of the mortgage, taxes, and insurance. After paying these charges, the sum of $97 per month was left to pay for maintenance and repair expenses, including any repairs and the purchase of salt for the sidewalk.
Defendant Maximo was disabled and received disability benefits, while Defendant Ana was employed with a net income of $210/week. Because the $97/month did not cover all of the expenses for the property, they used their personal funds to pay any additional expenses.
The defendants filed a motion for summary judgment, arguing that as residential landowners, they had no duty to clear snow and ice on the public walkway abutting their property. (While commercial landowners do have a duty to maintain the public sidewalks abutting their property, the law is clear that this duty is not imposed upon residential property owners.)
The trial judge applied the factors in the Appellate Division decision of Grijalba v. Floro, dealing with sidewalk liability for 3 family homes. The trial judge found that based upon the following factors from Grijalba, that the predominant use of the property was residential, not commercial: “there were no commercial entities at the property; there were additional repair expenses not covered by the rental income; and this was not a profit-generating apartment building.” Hence, the court ruled that the defendants were entitled to a summary judgment.
The plaintiff appealed, arguing that the trial court judge misapplied Grijalba in balancing the predominant use of the property as an income-generating venture. The plaintiff claimed that the judge disregarded the property’s capacity to generate income and earn significant profit after the mortgage was paid.
After reviewing the defendants’ circumstances, the Appellate Division was satisfied that the defendants’ predominant use of this property was residential, not commercial. Using part of the property for income production is a factor to be considered but it does not change the essential nature of the property as the owner’s residence. The defendants used the property as their long-time residence. They rented the two apartments to generate income to cover the carrying charges. The small profit that was generated did not even cover all of the repair and maintenance expenses.
Thus, the Appellate Division found that the defendants were not using the property as a method to make money. Rather, they were renting the two units to be able to retain their home under “tight financial circumstances.” Because the property remained classified as a residential property, the defendants had no duty to clear snow and ice from the abutting sidewalk. Thus, they were not liable for the plaintiff’s fall and resulting injuries.
