It’s sometimes impossible for co-ops and condos that want to improve their property to do the work without accessing the building next door. And sometimes your neighbors are not so neighborly and won’t grant you that access. You represented a building that wanted to add an extension and ran into an interesting problem.
Our client was a condo that wanted to build in the rear of its property. That required doing some foundation work and having access to the lot line and removing a fence there. The neighboring property got into a dispute with our building as to where the property line was. They had actually built up to our building’s fence and were encroaching on our building’s property. And so instead of negotiating reasonable terms of access, they were demanding a payment in order to allow our client to have their land back. So it was in effect a back-door adverse possession argument.
That seems pretty unreasonable. What happened next?
When parties can’t reach an agreement on their own, the party that’s seeking access can petition the court under the Real Property and Proceedings Law, which basically provides that the court will provide access on such terms as justice requires. So we drew up an access agreement and petitioned the court. The court essentially found that because there was no adverse possession litigation before the court, the terms of access that we were requesting were reasonable. And so in lieu of allowing the neighboring property to extract this exorbitant payment from our client, the court granted the terms of our access agreement and granted the neighboring property a license fee, which is usually what would be granted in an access case of this sort.
Were you confident going in that you would win approval?
lt is in the discretion of the court whether to approve the terms of an access agreement, but essentially the statute builds in a presumption that if access is necessary to accomplish a construction or other kind of project, the court will essentially allow it. But it wants to make sure that the terms are fair and reasonable. So at the outset, the application to the court needs to be supported by facts that demonstrate the extent of the work that is proposed to be done, the duration of the access that’s proposed, and the necessity of it. That means including an affidavit from an architect or an engineer explaining why the access is necessary and demonstrating that the work can’t be done in a less intrusive way.
Did the fact that you were granted the access agreement mean that neighboring property in effect ceded the issue of where the lot line was?
In this case, the court essentially informed the neighbor that their demand was unreasonable and wasn’t going to be granted. So the choice was to either agree to reasonable terms of access and thus be awarded a reasonable fee or to just lose and have all of our terms granted unilaterally.
When it comes to access agreements, what provisions should boards — on both sides — be sure to include?
From the perspective of the neighbor that is being intruded on, you want to make sure there is insurance in place so that any damages that are incurred as a result of the access can be covered. The license fee generally covers just the inconvenience for the neighbor granting access to their property. But certainly if there are specific property protections that need to be in place, such as temporary scaffolding or structures to support excavation work, those are generally things that the court would look for to be reasonably included in an agreement.
And what about the board that is seeking access?
One would want things like specifically defining the access period and making sure there are terms in the agreement that are clear about when access begins, such as after inspections are done or after permits are granted. You also want to make sure there are damage or remedy clauses in case any disputes arise after the agreement is entered into and access is refused or the neighboring property fails to comply with the agreement in any way.
If that happens, what can a board do? Is withholding payments a good tactic?
That can be written into an agreement. In fact, the terms of a license fee are usually monthly. The court will impose it almost like a sort of use and occupancy fee. What that means is one would want to specify in the agreement that those payments are tied to specific points in the access period. They’re almost akin to the progress payments that one would put in a construction contract. So, on a certain date, if the access isn’t being provided, that particular payment would be withheld.
Where do things stand with your client? It would seem that negotiating an agreement isn’t the end of the story and that problems can still come up.
Problems can still come up, and we’ve hit a few. We’ve had some back-and-forth negotiations with opposing counsel, but as for now, things are going smoothly. Usually the court will put in a provision that if there is any difficulty with access or compliance with the agreement, the parties can come back before the court. So that would be the ordinary remedy that most parties would see.
To sum up, what do boards need to know?
You want to engage counsel — specifically, someone who is experienced in helping to negotiate these agreements. You want to make sure that the agreement is reasonable at the outset and that if the need for a petition arises you have all the pieces in place to demonstrate to the court both the reasonableness of the terms and the necessity of the access that you’re seeking.
How common is it for disagreements to go to litigation? Is that something boards should be prepared for?
I would say probably eight out of 10 times that these types of disputes do end up in some type of litigation. Land is finite, properties are close to one another, and it’s almost a foregone conclusion that when a building wants to make some sort of change or improvement or alteration, that there will be issues that involve their neighbors.
FROM THE COURTS
January 19, 2021
Board of Managers of Carriage House Condominium v. Healy
A condominium sought access to the roof deck of an owner’s unit to make repairs to air conditioning condensers that service other units. The owner apparently permitted some access but not to professionals retained by a neighboring unit owner. The unit-owner refused to permit access to the other owner’s professionals unless the board met certain conditions. The board asked the court for a preliminary injunction requiring the unit-owner to allow access to the roof on one day’s notice for maintenance and repairs, as it’s the only safe, practical means of access. The court granted the board’s request. The unit-owner appealed and lost.