Courts Cast Doubt on Fees to Neighbors for Routine Building Work

Client Advisory

October 1, 2013
Two trial courts have recently cast doubt on neighbors’ ability to demand fees for access for routine façade inspections and repairs. Under New York City Local Law 11 (of 1998), building owners must inspect their facades every five years and repair any unsafe condition. Given the close quarters of New York City buildings, the hanging scaffolding necessary to comply with the law must often overhang neighbors. If the neighbor refuses access for this inspection and repair work, New York law provides a remedy.
Under Section 881 of the N.Y.S. Real Property Law, when a property owner seeks to make repairs or improvements and requires entry onto a neighbor’s property and is refused, it may petition the court to issue a license for the entry. The petitioner must show necessity (such as the need to comply with Local Law 11) and will be responsible for actual damages as a result of the entry. Neighbors sometimes resist allowing such access or demand fees in return for providing it. Although reported court decisions regarding Section 881 are very rare, in two recent decisions trial courts awarded licenses without fees and stated that “fees are not warranted in connection with [an] application for a license to carry out the emergency work in compliance with local law 11.”[1] In one case, the court specifically rejected a request for professional fees. Property owners standing in the way of their neighbors’ compliance with Local Law 11 should therefore be forewarned. 
The law is less clear when more complicated development projects are involved. For example, the New York City Department of Buildings generally requires persons carrying out demolition or construction activities to provide overhead protection (generally scaffolding or sidewalk bridge) for areas up to twenty feet from the construction site. This area usually extends into neighbors’ courtyards, rear yards, balconies and roofs. A developer may not be able to obtain necessary permits until it gets access and installs these protections, which may be required for many months of construction. The demand for access can be complicated by other factors such as party-walls, chimneys, lot-line windows and foundation support. On the one hand, a developer will not be able to proceed with a project without the license to address these issues--thus meeting the “necessity” threshold of Section 881. On the other hand, courts are very reluctant to order access when such complicated engineering issues are at play. The Department of Buildings generally stays out of such disputes altogether.  The result is almost always a negotiated solution among neighbors that includes indemnifications, insurance, professional fees and—often—license fees.[2] As several trial courts have noted in the past year, Section 881 access is “not granted lightly as the statute stands in derogation to the existing common law regarding trespass.” Parties are therefore generally ordered to “work it out” under court supervision. 

For more information concerning the matters discussed in this publication, please contact the author Christopher Rizzo (212-238-8677, or your regular CL&M attorney.

[1] 401 Broadway LLC v. 405 Broadway Condominium, 2013 WL 3829254 (N.Y. Sup. Ct. 2013); see also 10 East End Avenue Owners LLC v. Two East End Avenue Apartment Corp., 35 Misc. 3d 1215(A) (N.Y. County Sup. Ct. 2012). 

[2] See, e.g., MK Realty Holding LLC v. Schneider, 2013 WL 1482745 (Queens County Sup. Ct. 2013). 

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