Commission winter service

October 4, 2022
/
Unkategorisiert

Tips and tricks for awarding winter service contracts

It’s still warm and sunny, but soon the ice and snow will be coming to our buildings and properties. To ensure that everything runs smoothly from a legal and practical point of view, it is important to deal with the topic of “winter maintenance” now and prepare well for the coming winter season.

It is important to clarify what civil law obligations property owners have in this regard. In the case of private roads, the obligation to maintain the road (e.g. clearing and gritting) is governed by §1319a of the General Civil Code (SBGB). According to this, the owner of a road is liable if “a person is killed, their body or health is injured or property is damaged due to the defective condition of the road”, provided that they have caused the defect intentionally or grossly. In addition, the various provincial road laws contain further obligations to build and maintain roads in such a way that they can be used safely, taking weather conditions into account.

Furthermore, acc. §93 of the Road Traffic Regulations (StVO), sidewalks, footpaths and steps up to a width of 3m must be cleared of snow and ice or gritted in built-up areas along built-up properties between 6 am and 10 pm. If there is no pavement/walkway or similar, a strip 1m wide must be kept clear at the edge of the road and gritted or snow cornices and icicles removed (warning poles are not sufficient here!). Municipalities may also stipulate additional rules – it is best to enquire in good time with the municipality responsible for your property.

As a property owner, you can either perform these duties with your own staff or delegate them to third parties (tenants, leaseholders, service providers).

When renting/leasing, it is important to explicitly regulate in the tenancy agreement (who has to perform which duties and when and which legal duties (from ABGB, StVO + municipal regulations) have to be fulfilled) and to transfer them to the contractual partner in writing, incl. the suitability test and inspection obligation (if the tenant/leaseholder wishes to commission a service provider).

When awarding a contract to an external service provider, it is advisable to set out all legal obligations (from ABGB, StVO + municipal regulations) clearly and in writing in the contract and to check the suitability of the potential contractor before commissioning them (do they have sufficiently trained personnel and suitable equipment? What references does he have to show?) – if you do not do this and someone is injured, you are at fault for the “selection”.

If you delegate winter maintenance duties to third parties, it is important that you also regularly check the reliability and quality of the workmanship (either on site or have photos sent) and, in the event of poor performance, demand this (preferably by telephone and in writing) from the contractual partner. If there is no suitable response to mitigate the risk situation, it is advisable to take prompt action yourself and effectively reduce the risk potential. After all, in the event of an accident, culpability will be judged heavily on what you could have done to prevent or minimize the damage to a third party.

And if something does happen, the winter service provider should have liability insurance with sufficient cover (at least €10 million) – a confirmation of insurance for the service period (usually November – March) should prove this before the contract is signed.

And where there’s wood, there are chips. The damage caused by the winter service provider can be considerable (e.g. bushes/trees/fences damaged, manhole covers broken, kerbs loosened, etc.). If you cannot prove that this damage was caused by the winter service provider, you will be liable for the damage or repair costs.

We therefore advise you to inspect the clearing and gritting area together with the service provider on site shortly before the start of the service (in October) (using the site plan enclosed with the order to define the roads, paths, stairs, access points and snow storage areas to be maintained), to document the initial condition visually (especially the neuralgic areas or any previous damage) and to have this confirmed by the service provider. At the end of the clearing season, this inspection is carried out again to record all causal damage in writing and visually and to request the repair. The service provider can then arrange for the repairs to be carried out or prove the damage to the insurer more easily.

If you do not wish to carry out such service assignments and inspections yourself, we recommend having this carried out by an experienced facility management consultant.

It ensures that your legal risks and costs remain as low as possible and that you have more time for your core tasks.

To ensure that this topic is no longer overlooked in the future and that tasks can be scheduled, download our MyBuilding24 app(for Android, for Apple) right away.

Here you can record all your tasks as a property operator as well as your devices and systems that require inspection and maintenance and store the associated appointments.

With a complete list of your tasks and maintenance work available at all times, you are always on the safe side.