Can you be forced to pay for public sidewalk repairs?
Does your commercial property provide a public sidewalk and driveway apron at the street? If so, you may think that the city or county is responsible for maintaining these areas since they own them. Right?
That would make common sense, but this is one topic where common sense is not so common …
This is an all-to-common sight … public sidewalks that need repair and/or replacement.
In reality, while the responsibility differs from city to county based on their own ordinances, in most cases, the responsibility and the liability falls on the property owner.
Yes, you read that correctly … the responsibility AND liability falls to you, the property owner.
The fact is, the legal and financial impact that damaged and non-accessible sidewalks bring upon you, the property owner, is a “real issue” that should not be ignored.
How do you know if you’re actually responsible?
So how do you know if you are actually responsible for the cost of repairs and maintenance of the public sidewalk and what level of liability could you face if there is a “trip and fall” or an “ADA access related” lawsuit involving the portion of sidewalk adjacent to your property?
This is not a “new issue” facing cities or property owners. In fact, let me walk you through two examples of the evolution of this very “ordinance” and how the City of Los Angeles and the City of Sacramento in California has dealt with this issue.
City of Los Angeles
In 1974, as a result of a grant of federal funds, Los Angeles passed an ordinance placing the obligation to repair sidewalks solely on the city. When the federal funds ran out after a few years, The city has had difficulty enacting legislation to place the repair obligation back on the property owners.
As of 2010, approximately 4,700 of Los Angeles’ 11,000 linear miles of sidewalk (approximately 43%) were in disrepair.
The City of Los Angeles estimated spending between $4.3 and $5.9 million dollars in liability claims, and the cost estimate to repair the sidewalks was between $1.1 and $1.4 billion dollars. Los Angeles has been considering repealing the 1974 ordinance to shift responsibility back to the homeowners, but this effort has faced opposition from both commercial property owners and homeowners alike. On top of that, in the State Legislature, efforts have been unsuccessful to require a public vote prior to placing the obligation back on the building and homeowners. Translation? Even politicians know this is a hot-bed issue with the potential for trouble!
The City of Sacramento
The City of Sacramento has also experimented with assuming the “Cost of Repair” obligation. From 1943 through mid-1973, The city’s policy was that property owners were responsible for the cost of all repairs except those caused by city street tree roots for which the city shared responsibility.
In mid-1973, The city adopted a new policy making themselves responsible for all sidewalk repairs. Once this happened, sidewalk “repair requests” increased substantially. SHOCKER!
In mid-1976, finding the existing policy unworkable, the city elected to adopt a policy making property owners responsible for all sidewalk repairs, including those repairs necessitated by damage caused by city street trees.
Many cities have backed away from an ordinance placing the obligation of sidewalk repair on the property owner after major public outcry. Those cities that do have sidewalk repair ordinances in place still face consistent questions from the public as to the fairness and legality of requiring a property owner to repair the public sidewalk.
Here is some background on the California sidewalk repairs provision:
“California’s sidewalk repairs provisions are set forth in Streets and Highways Code sections 5600 et seq. In 1935, Assembly Bill 1194 amended section 31 of the Improvement Act of 1911 to provide for the repair and maintenance of sidewalks, curbing, parking strips and retaining walls by adjacent property owners.”
The primary provision requiring a property owner to repair a broken, defective or non-accessible sidewalk is found in the “Streets and Highways Code section 5610.”
Here is a snippet of the code provision:
§5610. Maintenance by lot owners:
The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under alike duty in relation thereto.
Two Major Things To Pay Attention To:
The vast majority of cities throughout California have passed ordinances imposing the obligation for sidewalk repair on adjacent property owners. However, there are some differences as to the extent of the obligation and how it is imposed.
Some cities, like Sacramento, impose the entire repair cost on the property owner regardless of the cause of any damage or displacement. Many cities exempt damage caused by city trees from the repair obligation.
Another option followed by many cities is a 50/50 sharing of repair costs. Some cities, in addition to a general sidewalk repair program, have instituted a program which requires a defective sidewalk to be repaired upon the sale of the property. This has the benefit of allowing the cost of repair to be recovered or paid as part of the price of the property.
One means of imposing such a requirement is to require that the escrow documents include a certificate of compliance with the sidewalk ordinance. In addition, some cities require the sidewalk to be repaired as a condition of the issuance of a building permit above a set value. One issue often overlooked is the secondary obligation of section 5610.
After setting forth the obligation of adjacent property owners to maintain the sidewalk “in such condition that the sidewalk will not endanger persons or property or interfere with the public convenience,” section 5610 “except those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof , and such persons shall be under a like duty in relation thereto.” There are currently no reported cases interpreting or applying this language.
The purpose appears to be to impose on utilities which maintain facilities (poles, guide wires, vaults, utilities etc.) in or on the sidewalk, the same obligation as imposed on adjacent property owners. This is a somewhat different conceptual obligation than that imposed on adjacent property owners because the source of any defect or interference with the public convenience would be the utility facility, not the sidewalk itself. Potentially, the primary importance of this aspect of section 5610 would be with respect to accessibility issues, i.e. 2% cross slope, driveway aprons 2% cross and 10% run slope max and a minimum 36” clear space around a utility pole and or guide wire.
In many cities, utility entities maintain facilities, particularly poles, which reduce the sidewalk width below the required three (3) feet of the California Building Code10 and the four (4) feet required by the ADA draft Public Right-of-Way Guidelines.
I could go on to explain the legal issues surrounding public sidewalk maintenance, Tort liability for defective sidewalk and liability for defective or narrowed sidewalks under the ADA and California Disability Access Laws, but I don't want to your eyes to roll back in your head and for you to fall asleep!
Why Is This Important To Me?
This is important to you because, if you are a property owner with a section of public sidewalk adjacent to even just one side of your property, it is not a matter of if, it is a matter of when you will get a notice in the mail alerting you to the fact that you have some issues with your section of sidewalk.
There is never a good time to get a notice like this. Either out of the blue with no permitted work being done on your property or when you or one of your tenants has just pulled a remodel or tenant improvement permit.
I don’t have one client that has been overjoyed to receive such a notice and just so happens to have an extra $80,000 to $150,000 dollars just laying around to pay for public sidewalk repair.
It especially difficult when no funds have been set aside and the city comes along and says you have two months to get your repairs completed.
So what are my options?
As most sidewalks are made of concrete, you have a number of repair options. If your sidewalk is in poor condition, you may need to have the concrete replaced. This is generally needed if a section of the sidewalk is sunken, unevenly sloped, has a raised lip, or is severely broken. This should be fixed as soon as possible, ensuring that you abide by your local jurisdictions requirements. A severely damaged or excessively sloped sidewalk is unsightly and opens you up to ADA and trip and fall liability.
While it might seem unfair that you are responsible for public sidewalks, the fact is that in many jurisdictions, including most of California, you have at least partial responsibility. This also means you have at least partial liability for any injuries, as well as having to worry about the aesthetic issues caused by damaged sidewalks. For many commercial properties, providing a solid and accessible sidewalk helps attract foot traffic and can easily pay for itself in the long run.
Make A Game Plan Now.
I have been assisting my clients nationwide with this one issue for over 30 years, and I have found that there are really only two ways to approach dealing with the city after receiving a notice to repair.
1) Argue, beg or threaten the city with legal action.
2) Inspect your section of sidewalk and then research the ordinance within your specific jurisdiction to better understand your liability and rights. Take a proactive stance and start preparing for the time that you need to act.
I have many clients that choose the first option and after a lot of back and forth, frustration, waste of valuable time and monies, they end up going with option 2.
Here is the approach that I have found works very well and in favor of the property owner 99% of the time.
1) Inspect your section of public sidewalk and all driveway aprons onto your property to identify any tree root lifted sections, any areas that exceed 2% cross slope and identify any utilities, poles or guy wires that reduce the clear space for wheelchair users to under 36” wide. Also, identify any low handing tree limbs that are below 80” above the public sidewalk.
2) Get an estimated cost to make these repairs by a trusted general contractor so that you have some idea of the costs to repair. Keep in mind that you will need a set of civil engineered drawings to submit to the building department and your sidewalk repairs may require traffic control and possible lane closure while repairs are being made. These are all additional costs.
3) Start budgeting behind the scenes so that you are not blindsided when the city mails you a repair notice.
4) Keep in mind that these repairs can be triggered by any permitted project taking place on your property. The notice can be sent even without any permitted work taking place on your property.
You will always be in a better position to negotiate with the city for a “deferment” or some type of delayed or phased plan to make the required repairs if you are proactive, informed and can show the city that you understand what needs to be done and propose a solid plan.
If you have any questions about the public sidewalk in front of your property or you have already received a notice to repair, reach out to me directly and I will take time to discuss your project and help you navigate this process.
Regards,
Chris Taylor
CASp 240
Certified Access Specialist