New York's Cooperative and Condominium Community

Habitat Magazine Business of Management 2021




Good fences make good neighbors, as Robert Frost knew so well. But when adjacent New York buildings share anything – fences, retaining walls, or common walls that are known as “party walls” – relations between neighbors can go from good to bad to downright ugly in a heartbeat.

After dealing with two neighboring buildings over questions of shared property, a small co-op near Union Square knows, first hand, just how good and just how bad such dealings can get. This board’s experiences are instructive for any board that is forced to deal with a neighbor over the potentially messy issue of shared property.

Like many older New York buildings, the five-story, 12-unit co-op at 126 East 16th Street near Union Square shares a wall with the property next door. There are also adjoining gardens behind both buildings. Until four years ago, the basement and first floor of that neighboring structure housed a pre-school called Beginnings, which rented its space from the building’s owner. When the property went up for sale, Joe Gosler, the owner of Beginnings, decided to buy it and expand the school into the upper floors.

That was when things began to get complicated.

Before the school could expand, building codes required that the building have another path of egress to the street. The simplest – and cheapest – way would be for pre-schoolers and staff to walk into the rear garden, then pass through one of the two garden apartments next door. From there, they would have access to the co-op’s front lobby, front door, and, finally, the street.

“It was clearly not an ideal arrangement for them or us,” says Gosler. “The attractive thing for us was that it was a less expensive option.”

The co-op’s board, understandably, did not warm to the idea. Then it made what was, in retrospect, a strategic mistake. A member of the board had two children enrolled at Beginnings. Rather than dealing with the pre-school as a group, the board decided to let that parent try to work out a compromise.

“We thought a friendly face might make things go more smoothly,” says Amy Benjamin, an intellectual-property lawyer who is president of the co-op’s five-member board. “But it didn’t work out that way. Maybe we should have sat down over coffee with them.”

When it became clear that he was not going to be granted access to one of the co-op’s two garden apartments, Gosler consulted an engineer for other options. The engineer reported that building codes would be satisfied by a fire escape on the front of the building that reached the second story.

And so the fire escape was attached to the building’ s façade – including the “party wall.” The residents of the co-op were dismayed by the aesthetics of the fire escape, the only one on a block dominated by century-old townhouses. Worse, the construction caused some cracking of the co-op’ s facade.

“We were not happy,” says Benjamin. “We had an engineer come to look at the cracks to see how serious they were. They were horizontal and didn’t require immediate repair. The engineer did some research and learned [the neighbors] were entitled to go into their half of the party wall, which is what they did. There was some back and forth, but we realized we didn’t have a leg to stand on.”

One thing all parties agree on is that there was a fundamental failure to communicate. “I think communication is the key,” Benjamin says. “You can’t force the other side to communicate with you, but if the board had an in-person meeting instead of using one board member as an intermediary, it might have worked out better.”

Gosler agrees. “Each building situation is different and there’s no single blueprint on how to do this,” he says. “But more direct communication is always preferable. It has always been my business management style to deal directly with people, rather than talking to a third party or a person in a less authoritative role.”

Live and learn. When the co-op board was faced with a second issue over shared property, it worked out a far more satisfactory solution. This time the source of the problem was smoke emanating from the chimneys on the co-op’ s roof.

“Some of the chimneys are not tall enough and smoke was blowing back into the top-floor apartments,” says Benjamin, noting that every apartment has a fireplace, and the four top-floor apartments have private roof decks. “It became an acute problem when people started using their decks more. Between that and new people coming into the building and using their fireplaces more, it came to the board’s attention about two years ago.”

This time, the solution lay with the neighbor to the west, a 10-story commercial building at the corner of Irving Place and East 16th Street. Two contractors suggested installing 12-foot chimneys and attaching them to the wall of the neighboring building for support.

The board approached the representative of the building’s owners. He agreed to the proposal – but insisted that the co-op accept liability even after the job was complete. He also insisted that the commercial building and all of its owners be named as additional insureds.

Never underestimate the value of competent and creative professionals. The board, unwilling to carry such a burden of liability, turned to its attorney, James Samson of Samson Fink & Dubow. He advised them that the liability demand was ridiculous and that the neighbor might even be responsible for the chimney repair since the commercial building is taller and the co-op building is, apparently, older. Research of building records was inconclusive on this last point, but at the least the board had a negotiating chip. Communication, as the board knew from its previous experience, was the key.

“It’s a little unclear which building is older,” says Benjamin. “There was a little back and forth, and they agreed to pay for half of the project – and drop their liability request.”

The board had lived, and it had learned. “We were very happy,” says Benjamin. “It wasn’t going to cost us as much, we got the liability removed, and the timing was good. It was not a terribly expensive job – about $7,500 – so we didn’t want to get involved in a lawsuit.”

The board also had the luxury of time. “We weren’t in a terrible rush to get the work done – unlike the school, which just plowed ahead when we said no to giving them access to our building,” she says. “We weren’t on a timeline, so we had some wiggle room. We could have gone back to the engineers and told them to come up with something else. I think that helped. And part of it was that we had a chip to play.”

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