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Access to a Neighboring Building Is Not Guaranteed

Victor M. Metsch in Legal/Financial on October 8, 2020

Lenox Hill, Manhattan

License agreements, Facade Inspection and Safety Program, Local Law 11, co-op board.

A sidewalk shed went up behind the co-op after a license agreement was renegotiated (image via Google Maps).

Oct. 8, 2020

The co-op board at 160 E. 65th St. in Lenox Hill hired an architect to inspect the building’s facade – a routine first step toward complying with the city’s Facade Inspection and Safety Program, formerly known as Local Law 11, which requires owners of buildings taller than six stories to inspect their facades and make necessary repairs every five years. The architect reported back that remedial work was urgently needed – and the project would require access to two buildings behind the 178-unit, 32-story co-op tower. Specifically, the co-op sought a license to install, maintain and remove roof protections, pipe scaffolding, a sidewalk shed, and a protective shed on the neighboring property. Also required was a scaffold that would hang directly above one of the two buildings. Safety plans were annexed to the petition.

It sounded like a legal slam dunk – the co-op was simply trying to do what the law requires. But the owner of the neighboring buildings, Mindel Residential Properties, demanded a licensing fee of no less than $20,000 per month, plus reimbursement for all attorney and professional fees. When negotiations broke down, the co-op took Mindel to court for access under Section 881 of the Real Property Actions and Proceedings Law.

In court, Mindel accused the co-op of failing to mention prior litigation and the terms of license agreements between the parties that were entered into in 2006 and 2011 for similar facades repairs. Mindel also maintained that the new safety measures proposed by the co-op were “palpably insufficient.”

The co-op claimed that it could not comply with Local Law 11 without entering Mindel's properties. However, that did not mean that the co-op automatically got a temporary license. The court was annoyed that the petition did not disclose the significant and relevant factual and legal history between the parties.

Applying a reasonableness standard, a court is required to balance the interests of the parties, and it should issue the license when necessary and when the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license request is denied. The court rejected the co-op’s claim that Mindel's position was unreasonable. Mindel demonstrated that the work and proposed protections might result in unsafe conditions – a showing that was sufficient to defeat the petition. Further, the co-op sought to put the court in the role of the Department of Buildings (DOB) and have it sort through Mindel's objections to the proposed work and temporary protections. The prudent course of action here would have been for the co-op to seek DOB approval when Mindel raised its objections to the safety measures. The DOB is an agency with the specialized expertise to make such a determination.

The court found that the co-op failed to establish that its interest in moving forward with legally mandated work outweighed Mindel’s objections. Therefore, the co-op’s petition for access to the neighboring properties was denied.

Lesson learned: Neighborly disputes are best resolved in a neighborly manner. Recourse to the courts does not assure a successful outcome even where a property owner seeks relief to perform work mandated by statute. The law also protects a neighbor.

Victor M. Metsch is of counsel at the law firm Smith Gambrell & Russell.

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