Marianne Schaefer in Building Operations on October 19, 2017
Balcony enclosures are about to become a major headache for co-op and condo boards and their management companies.
“The Department of Buildings (DOB) started cracking down on these structures last fall,” says Stephen Varone, president of RAND Engineering & Architecture. “People put up these enclosures of their balconies by the thousands all over the city. Most of them never got permits. Even though one always needed a permit if it was anything more than just screens, the city never enforced it. There are so many throughout the city that it was just kind of accepted. All this changed last fall.”
DOB spokesman Andrew Rudansky stresses that the requirement for permits for enclosed balconies has been in effect since 2014. “But it’s conceivable that building owners were unaware that they were not complying with the code until they hired a design professional to submit a Cycle 8 facade report,” Rudansky says. “Enclosed balconies that require a DOB permit must either obtain this permit or be removed from the building.”
Enclosures leaving open 33 percent of the balcony are exempt. Screened enclosures installed before October 2, 2011 with a building notice, and paneled enclosures not functioning as a room and installed before the same date with a building notice or permit may remain – if proof of the installation date can be produced. All other screened/paneled enclosures located more than 40 feet above grade will have to be legalized or removed.
The DOB’s Facade Inspection Safety Program (FISP), formerly known as Local Law 11/98, requires owners of buildings taller than six stories to inspect their facades at least once every five years, then file a written report of the findings along with a schedule of proposed repairs. We are now in the FISP 8th cycle, which runs until Feb. 20, 2020. The DOB requires that any enclosed balcony that does not meet the criteria must be identified as Safe With a Repair and Maintenance Program (SWARMP).
“You don’t get an immediate violation,” says Varone, “but by the time the 9th Cycle Report is filed, that SWARMP condition has to be addressed, meaning via legalization or removal of the enclosure. Otherwise, the condition will be downgraded to ‘Unsafe’ status. The 9th Cycle filing deadline for the first group of FISP buildings is February 21, 2022, so we may be headed for a legal nightmare once we get closer to the 9th Cycle.”
The issue is particularly thorny because it extends beyond the need to obtain permits. “In many cases it will not be possible to legalize a subject enclosure because every building has a permissible Floor Area Ratio (FAR), which essentially establishes how big the inhabited floor area is allowed to be,” Varone says. “Many buildings in Manhattan are already built to the maximum. You cannot just say, ‘Oh, I’m going to add another room here.’ If the proposed legalization of an enclosure means the building will exceed its permissible FAR, it will not be permitted. In such cases, all you will be able to do is turn the enclosure back into an exterior balcony.”
Real estate attorney Theresa Racht foresees major problems for co-op and condo boards. “Those enclosures are scattered all over the city,” she says. “They often started as a temporary enclosure and over the years would become more permanent. Many have been there for a very long time. Buildings, management companies, boards and owners might have changed. The records are going to be in many cases non-existent or very hard to obtain. It’s also going to be difficult for the boards to allocate responsibilities.”
Varone says the legality is a lot clearer when the current occupant erected the enclosure. “Then it’s on the owner,” he says. But what will happen if a board approved the sale of an apartment with that “extra room”? Varone suspects the answer will have to be hashed out later between residents and boards.
When facilitating an apartment sale, attorney Debra Powell asks if all approvals were obtained from the DOB. “But I never asked specifically about the balcony enclosures, because nothing was ever enforced,” Powell says. “Now I have to step up my due diligence. It has to be a specific conversation. It’s very common that the enclosures were done without a permit and nobody realized they needed one. And once you close the sale, it’s difficult if not impossible to go after the seller because usually the representation doesn’t survive [the closing].”
At present, there are more questions than answers. But Racht, the attorney, offers a solid prediction: “It looks like it will be a hornet’s nest.”
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