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Our co-op needs to get access to the building next door to complete our facade work, but we can't get any cooperation. How do we move forward?
“The reason New York City has building facade inspection and repair requirements in the first place is because of the number of deaths linked to falling masonry from city buildings,” explains Steve Wagner, a partner at the Manhattan law firm Wagner, Berkow & Brandt who represents co-op and condo owners and their boards and handles construction litigation.
Facade work, roof work, window and parapet repairs—all these projects can result in a board needing access to a neighboring building to complete Local Law 11 or other repair work.
“It can be very dangerous if there is a delay to a building’s facade work. If something falls off your building it could damage the adjacent building or worse, injure somebody, resulting in a needless human tragedy like the one in Midtown recently,” says Wagner.
There are plenty of reasons why your neighbor—or any neighboring building—may be reluctant to provide access.
“Sometimes it is the result of a poor relationship with the adjacent building, or the neighbor may have a beautiful backyard with a pool and roof deck and not want anything covering it, or they may want so much protection that it becomes economically prohibitive for the party needing to do the work,” says Wagner. An unoccupied building might also result in no one responding to a board’s requests for access.
An access agreement is a priority
Your first step will be negotiating an access agreement with your neighbor.
With the proper legal representation, you can create an agreement to cover every aspect of the forthcoming project.
Agreements include the “duration of the access; what the protection will consist of; making sure the insurance policies have the appropriate coverage; possibly establishing an escrow fund to cover expenses and damages; whether or not there will be fees paid for the access and whether it will be the same for the entire period of time or change according to the work that is being performed; and whether and how much you will be reimbursed for legal and other professional fees,” explains Wagner.
An access agreement will also have provisions if the work takes longer than expected. There may be higher fees for the building doing the work if the project overruns.
Wagner says while access agreements don’t typically include a site safety plan to protect tenants from dust and noise, a lawyer familiar with construction issues will be able to negotiate these terms into an agreement to a much higher standard than the typical Department of Buildings contract. Mutual access could also be part of the negotiation as well as the degree of control the party giving access has over any repair work for damage to its building.
A lawyer with knowledge of construction will have an understanding of what effect the work may have on the buildings and whether you need any underpinning or shoring which are additional and separate issues that might need to be negotiated.
What to expect if it goes to court
If you can’t come to an agreement or your neighbor is being unresponsive, Section 881 of New York’s Real Property Actions and Proceedings Law allows a court to order access from a neighboring building.
Wagner points out involving the courts is the last resort, incurring a lot of expense and much more pressure on the process.
“No one wants to go to court because it’s costly and the party seeking access and making the repairs will have to pay the legal costs,” he says. Additionally, “very often the judge doesn’t want to be dictating the terms of these things, especially if he or she is not familiar with construction.”
Once the courts are involved it is no longer a case of one party ignoring the other or taking weeks, or even a month, to respond to requests for authorization and paperwork.
“Each time there’s an appearance, the judge gets to see what’s going on and if necessary can add pressure. The entire process moves a lot faster,” says Wagner. “Having a lawyer who is familiar with construction and has dealt with similar problems is going to add experience and insight, which is helpful to both the negotiation and court proceedings and allows these matters to be concluded quickly.”
New York City real estate attorney Steven Wagner is a founding partner of Wagner Berkow & Brandt, with more than 30 years of experience representing numerous co-ops, condos, and individual owners and shareholders. To submit a question for this column, click here. To arrange a free 15-minute telephone consultation, send Steve an email or call 646-780-7272.