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More than a Mere Nuisance – 5 Snow Loading FAQs

Published:

March 3, 2015

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Snow can be a big nuisance at this time of year, but snow load – the weight of the snow, usually measured in pounds per square foot – can be more than a mere nuisance. Your building could affect the snow load of your neighbor’s building or structure, causing significant damage to it for which you could be liable.

Here are 5 frequently asked questions about your legal obligations and liabilities around snow loading:

  1. What problems can snow loading cause? The snow load on the roof of a previously existing neighboring building can be increased when someone (we’ll call him the “new builder”) builds a higher, neighboring structure.  However, the existing building might not have been built to withstand that increased snow load, and it could either damage the existing building, or its owner might have to reconstruct it to a standard that can handle the increased snow load.
  2. What obligations does the new owner have to her neighbour? The new builder has obligations and liabilities to her neighbour based on the law of nuisance. One person can’t sue another based on minor nuisances that arise out of the normal and reasonable use of land. Beyond that, the question is whether a land occupier’s conduct has been reasonable vis-a-vis her neighbour.  If the actual (or even the planned) construction of a new building will inevitably damage or require reconstruction of an existing neighboring building, the new builder could be liable for the cost to repair that damage or to bring the existing building up to a standard that will withstand the increased snow load.
  3. What legal defences does the new owner have against her neighbor’s claims? The new builder can deny that the construction of his new, higher building caused the damage to the existing neighboring building or the amount of the costs to repair the damage or to bring it to the necessary standard. Otherwise, though, it’s not a defence that the new building owner is making lawful and reasonable use of his property: if the construction of the new building causes damage to the neighboring one, he might be liable. However, if the new builder sought the neighboring owner’s consent to reinforce the roof on the existing property to avoid the damage caused by the increased snow load, but she refused to consent, the new builder might have a legal defence against her court action for nuisance.
  4. What  possible remedial orders might a court give the injured neighbour? If construction of the new building will cause damage from snow loading to a neighboring property and it can’t be prevented, a court could make an order (called an injunction) preventing the new builder from constructing his building unless there’s a specific law that authorizes him to proceed, or he obtains consent from the owner of the existing building. However, a court won’t often make this kind of an order where it can require the new builder to pay the costs of repair or replacement that should adequately compensate the existing building’s owner for any incurred costs or pending harm. If the increased snow load actually causes damage to the neighboring existing building, a court can order the new builder to pay the cost to repair that damage or to replace or reinforce the roof to prevent damage.
  5. How can the new builder avoid this snow load issue? If you’re planning to build a new structure that will be higher than an existing neighboring building, be proactive: determine in advance whether the snow load resistance of the pre-existing neighboring building is sufficient to stand any increase in the snow load. If it’s not:
    • Change the design to ensure the snow loading that the new building imposes on the pre-existing building isn’t increased beyond its capacity; or
    • Ask for consent from the owner of the neighboring building to carry out repairs on the pre-existing building to ensure it’s not damaged because of increased snow loading. If she refuses to consent, seek immediate legal advice on your options.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Real Estate Team or our Construction Law Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2015.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it.  You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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