When Neighbors Aren’t Neighborly

When doing repairs on your building requires access to your neighbor’s property, you need a licensing, or access, agreement. But as one co-op found, that’s easier said than done. What happened?

We had a Facade Inspection and Safety Program (FISP) project and contractor all lined up, and then — no pun intended — we hit a brick wall. The neighboring building and its counsel kept pushing back on every aspect of the licensing agreement, and it got to the point where we had to be very generous and give in to the neighbor’s financial and other demands. We asked the board if there was a history of bad blood, but no one could recall any issues with the neighboring building. 

The consequences were significant. We were not able to start in time for the 2022 construction season, and in December the contractor told us that because costs had skyrocketed for labor and materials, he couldn’t do the work for the contracted price, which was about $400,000; he would have to add another 20%. On top of that, the co-op was paying about $1,500 in monthly fines to the Department of Buildings for not getting its FISP work done on time, and it was paying an exorbitant amount of money in this access agreement each month.

Why are access agreements so hard to get now? 

I’ve been in this business long enough to remember that in the old days, if someone had to put up a sidewalk shed or have their contractors go onto the neighboring property, the super would just walk next door to say to the other super, “Hey, I got guys coming,” and that was it. It was pretty much a handshake. Then it evolved to providing your contractor’s certificate of insurance, naming the neighboring building as additionally insured. And that satisfied people for a very long time.

But certain laws changed in the last five years. Owners of neighboring buildings can’t stop you from stretching a sidewalk bridge onto their sidewalk, but they may protest and claim that they’re losing light and air on their lower floors, and they have a right to challenge the work by making the building performing the work ultimately responsible for any impact or financial damage or repairs to their property. The other thing is that the Department of Buildings safety measures have become greatly enhanced, whereas maybe five, 10 years ago, if you had to put protection on a neighboring property, it didn’t have to be quite as detailed as is required now.

What can boards do to keep access agreements from becoming roadblocks? 

You can negotiate a reciprocal access agreement. If the adjacent building is also subject to FISP, it’s quite likely it will need access to your property at some point, which levels the playing field so that one party can’t be extraordinarily greedy with the other. You’ll say, “OK, when we’re each doing our FISP repairs, we’ll pay each other $1,000 a month.” What’s good for the goose is good for the gander. It’s nice when that happens. But if there’s a townhouse next to you that isn’t subject to FISP and rarely has to put protection on your building — well, any property manager will tell you that can be a big headache.

Reciprocal agreements are also a good idea because boards change, chemistry changes, personalities change. But reciprocal agreements aside, you should get to know your neighboring board so you have that connection if an access issue comes up. I’ve seen it work in buildings where neighboring boards are friendly and know each other socially. Then it’s not so hard.

Any final words of advice?

Advanced planning is critical because what I see time and time again is boards are mystified as to why negotiating access agreements takes so long. It can take five or six months because there’s a lot of negotiating and back and forth between the lawyers, architects and insurance companies for both sides. You need to start that dialogue right away.