Making local law 11 or other repairs when an adjacent landowner may not want to help.
New York City Local Law 11 requires a building’s exterior walls and appurtenances to be periodically examined by a licensed architect or engineer. If the professional finds an unsafe condition, then she must file a report indicating same with the Department of Buildings. When such a report is filed, the building owner must correct the unsafe condition within a prescribed period of time. As part of the correction process, the owner may be required by necessity or practicality to erect sidewalk sheds or scaffolds in front of or above a neighbor’s property, go onto the neighbor’s land or roof, or enter the neighbor’s airspace.
Of course, the general rule is that one must obtain permission to enter another’s property; if permission is not granted, then it could be a trespass. When, for example, a managing agent of a co-op or condo needing Local Law 11 repairs reaches out to the neighboring brownstone’s ownership and advises that a sidewalk shed or scaffold must be erected in front of and above the brownstone, the brownstone owner may say “no.” (Understandably, nobody wants a sidewalk shed or scaffold for what often becomes an extended period of time.)
The foregoing example leaves buildings needing repairs in the unenviable position of being required to conduct exterior repairs but not having permission from the neighbor to comply with applicable law so that the repairs can be carried out. Making matters worse for the co-op or condo, any person who violates, neglects or refuses to comply with Local Law 11 may face a fine and/or imprisonment.
A helpful tool for co-ops, condos and developers dealing with adjacent land owners who withhold consent is found in section 881 of the Real Property Actions and Proceedings Law. Section 881 allows an owner (or lessee) of real property to commence a special proceeding for a license to enter the adjoining property. The party seeking the license must show that repairs cannot be made without entering the neighbor’s property and that permission was sought and refused. Section 881 provides that the license will be granted by the court “upon such terms as justice requires” and places liability on the one seeking the license for actual damages to the adjoining owner as a result of the entry. The statute balances the interests of both parties; the owner desiring entry can obtain a license and proceed with the required work, while the owner of the adjoining property can be protected by the terms or conditions imposed by the judge and by the statutory liability upon the licensee for any actual damages to the neighboring property. The special proceeding may be commenced by an “order to show cause” – such proceedings generally accelerate the resolutions of lawsuits.
(Note: legislation is pending in Albany – Senate Bill S8430A – to amend section 881. The proposed amendment sets out a list of valid license purposes, including for certain permanent encroachments (e.g., wall ties and underpinnings). But the law also includes certain benefits for adjacent owners, such as a requirement that a party seeking a license provide a good faith estimate of the dates and duration of the required access and that the adjourning owner be reimbursed for reasonable architect and engineering fees for reviewing certain documents related to the proposed work.)
Based on the foregoing, it is recommended that owners developing or repairing their properties in the City consider the benefits of invoking Section 881 if an adjoining property owner declines to grant consent to enter its property.
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Parnagian LLC advises clients on business and finance and real estate matters. Please contact Chris Parnagian if you have questions about this article or about the firm’s practice areas.