Victor M. Metsch in Legal/Financial on May 30, 2019
Unit-owners at the Newswalk condominium in Prospect Heights, Brooklyn – a repurposed former Daily News printing plant – are no strangers to strife. When the first unit-owners moved in after the 2002 conversion, they were shocked by construction so slipshod that many of the “luxury” apartments were barely habitable. The condo board sued the developer, Shaya Boymelgreen, for $10 million. A decade later, Boymelgreen agreed to pay an $875,000 settlement and hand over ownership of the building’s retail unit and laundry space. The condominium survived and thrived.
But strife has returned to the Newswalk. Today, instead of unit-owners vs. developer, it’s neighbor vs. neighbor. Marina Voron and George Argiris, the owners of unit 515, wanted to upgrade their bathroom. They sought an order directing the condo board, its management company, Choice New York, and their downstairs neighbors, Liliana Ariztizabal and Tony Pimienta, to give their plumber and contractor access to common plumbing and other elements through unit 415. The former printing plant is a concrete structure, and the renovators needed access to plumbing lines in the concrete slab that forms the floor of unit 515 and the ceiling of unit 415.
The board approved the renovation plans, accepted the general contractor's insurance certificates, and authorized the start of work in unit 515. The Department of Buildings approved the renovation plans and issued permits. Then things hit a snag. The owners of unit 415 refused access despite assurances that proper precautions would be taken to minimize disruption and inconvenience and to repair any damage caused by the work. So the owners of unit 515 asked the board to require the owners of unit 415 to provide access. Management advised them the board would not intervene in disputes between unit-owners.
Voron and Agiris sued, claiming that the denial of access to the downstairs apartment violated the condominium's declaration and bylaws which gave all unit-owners an easement to use the common elements in other units for installations, alterations and repairs.
Section 881 of the Real Property Actions and Proceedings Law came into play. It permits a court to give one property owner a license over and through the property of another in connection with an improvement or repair. The owners of unit 515 asserted that unit 415 was an adjoining property that shared a deeded interest in the common elements between the two units – and that they were entitled to access to the those common elements. The owners of unit 415 contended that Section 881 was meant to address adjoining land owners, not adjoining units within the same condominium.
The court found that Section 881 was applicable to adjoining condominium units because the plain language of the statute applied to any "real property," which includes condominium units. The court then had to apply a reasonableness standard in balancing the potential hardship to the unit 515 if the petition was not granted, versus the inconvenience to unit 415 if it is was granted.
At the hearing, the court determined that apartment 415 was vacant. It also found that the owners of unit 515 had satisfied the statutory prerequisites of showing necessity, and that neither the period of time requested nor the size of the area involved was unreasonable. Section 881 afforded the owners of unit 415 adequate legal rights and remedies by subjecting the upstairs neighbor to full liability for any damages occurring as a result of the entry. To ensure payment of such damages, the court required maintenance of adequate insurance. Additionally, the downstairs neighbors would receive compensation for use of their unit during the very limited time period of the license. The renovation of the bathroom in unit 515 was allowed to proceed.
The lesson here is one of the oldest in the book: Do unto others as you would have them do unto you. Neighbors should accommodate each without the need for a court intervention.
Victor M. Metsch is of counsel at the law firm Smith, Gambrell & Russell.
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