Q. The apartment above ours recently was sold and is undergoing a gut renovation. Several weeks ago the building manager asked me if the new owner's contractor could gain access through our bathroom ceiling to do some plumbing work. I declined.
Yesterday I got a hand-delivered letter from the new owner's architect, indicating a much larger scope of work not just confined to our bathroom. Workers would restore our ceilings to original condition and they even offered (unspecified) monetary incentive.
The building manager says such work would probably take several weeks, although everything would have to be meticulously cleaned up and some sort of temporary ceiling installed every day. The letter says the owner is "caught between 'a rock and a hard place' to do both what your building requires and what the coop is asking for."
My question: How far does neighborliness extend to people I've never met but who will be living above me? Would you allow this kind of disruption to your life/space?
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A. Our experts seem to think this request goes above and beyond the call of neighborliness.
"The old adage that you can swing your arm any way you want as long as it does not touch your neighbor's nose applies here," says real estate lawyer Steven Wagner of Wagner Berkow. "This neighbor is asking if he/she can touch your nose. I'd say no. Being neighborly does not include permitting your new upstairs neighbor to turn your bathroom into a construction zone."
Property manager Paul Gottsegen agrees that you have been placed in a highly awkward position, and notes that you can't be forced to permit access.
Your neighbor's renovation plans "may be overreaching the typical building standard for apartment renovation work," suggests property manager Thomas Usztoke. "This may be compounded by what may possibly be a disinterest or lack of awareness the board/management" behaving more like bystanders than arbiters.
"Your communication should include your board/management," says Usztoke. "If they aren't stepping up to explain the why's and justifications for allowing the degree of invasiveness that htis appears to be, seek proper legal counsel before agreeing to anything."
If you are tempted to take the money being offered and put up with the dust, dirt, inconvenience and loss of use of your bathroom, consider these issues, says Wagner:
- You will need the consent of the coop to have the work performed in your apartment. Your proprietary lease does not allow any alteration in your apartment unless you get consent of the coop. Putting a hold in the wall or ceiling of the bathroom and, presumably performing work on the pipes is an alteration. The fact that the upstairs neighbor obtained consent from the board does not cover you or your apartment. Does your coop charge fees for the application? Is there a fee paid to the coop during the progress of the work and if the work is not completed within a stated period of time?
- You will need insurance. The contractors who are performing the work for the neighbor should name you as an additional insured party on the insurance coverage and you should receive an insurance certificate.
- The contractor performing work in your apartment has the right to place liens on your apartment. The law prohibits any agreement by the contractor to waive its right to file a lien. If work is performed in your apartment and the contractor files a lien, you will be responsible to remove it by either bonding or payment, or else the coop can take action against you and your lender can take action against you.
- You will have no control over the work performed. The contractor will be responding to the requests/instructions of the upstairs neighbor and/or his/her architect. Keep in mind that contractors are not all the same in the quality of their work or in their responsiveness. "You will be truly subject to the whims of the contractor and of your upstairs neighbor unless you enter into a separate agreement with the contractor," says Wagner. "I question whether the 'meticulous clean up' is something that the managing agent could warranty or is even a real possibility."
"The short answer," says Wagner, "is that I would not allow the work to be performed in my apartment. You did not put the upstairs neighbor 'between a rock and a hard place.' It follows that you’re not responsible for getting him/her out of the tough spot."
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