Are Homeowners Responsible for Sidewalk Condition During Transition?

Posted in Community Associations

During the transition process from declarant to homeowner control of an association, one common area of dispute is the condition of the sidewalks. The new sidewalk surfaces may be scaling, cracking, spalling, discolored, holding water, or otherwise falling apart. The association attributes the condition of the sidewalks to defective construction and requests the declarant to repair or replace the crumbling sidewalks. The declarant blames the condition on the association’s use of de-icing chemicals (i.e. salt) and refuses to repair the sidewalks. This scenario is played out, time and again, throughout the Northeast. Yes, I have actually received letters from developers’ attorneys in which they accused my association clients of engaging in unreasonable conduct by salting their sidewalks.

While most communities apply de-icing chemicals to their sidewalks in a uniform and consistent manner, sidewalk failures are almost never uniform. Sidewalk failures are typically isolated to select slabs of concrete and can be spaced far and wide within a community. If de-icing chemicals are really that damaging to concrete, then associations would experience uniform patterns of deterioration on sidewalks that would match the spread pattern of the de-icing chemicals.

According to the American Concrete Institute, salt should not damage concrete that is of: 1) good quality; 2) properly constructed, and; 3) mature prior to the first exposure to winter weather and de-icing chemicals. Good quality concrete for the Northeast climate should be adequately air-entrained and made from durable, well-graded, and frost resistant aggregates. The concrete should have an air content of 6% to 7% (+/- 1.5%). Air entrainment is the intentional creation of tiny air bubbles in concrete. The air bubbles provide pressure relief that can accommodate the expansion pressure associated with the freeze-thaw cycles that occur in winter.

Proper construction involves the method of placement, finishing techniques, and curing procedure. The possibility of error appears the highest in this category. For example, the protective air entrainment at the surface of concrete can be squeezed out of the concrete cement paste by poor finishing practices. Another example of improper construction is when the sidewalk is sloped in a manner that permits the concrete to become over saturated and susceptible to premature deterioration.

The date of the placement can also influence the durability of concrete relative to winter. Concrete should be allowed to fully air dry and achieve a compressive strength of at least 4000 psi before its first exposure to freezing or de-icing chemicals. Late fall placement, for example, can lead to the concrete being subjected to freeze/thaw cycles and de-icing chemicals before the concrete develops sufficient strength.

Keep in mind that all three of the conditions necessary for the sidewalks to avoid damage from de-icing chemicals are almost always within the exclusive control of the developer. The developer is responsible for procuring the concrete, constructing the sidewalks, and dictating the construction schedule. The developer is also responsible for snow and ice removal until transition. It is very likely that the developer has been using de-icing chemicals long before the responsibility of snow and ice removal falls upon the homeowners.

Any assertion by the declarant that the use of de-icing chemicals caused the deterioration of sidewalks should be challenged. While it may be true that the use of de-icing chemicals led to the deterioration of the sidewalks, the deterioration was likely only possible by the defective construction of the sidewalks in the first instance. Since the use of de-icing chemicals is a way of life in the Northeast, declarants must ensure that the sidewalks are properly installed to withstand this climate.