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Upstairs v. Downstairs: Was the Access Lawsuit Worth It?

Andrew P. Brucker in Legal/Financial on March 8, 2021

Prospect Heights, Brooklyn

Access agreements, licensing agreements, condo unit-owners, Section 881, apartment renovations.
March 8, 2021

When co-op and condo boards set out to perform mandated maintenance to their building exteriors, they frequently need to gain access to neighboring properties to perform the work. It's customary for both parties to negotiate an access, or licensing, agreement. Usually the negotiations are cordial, but sometimes they break down in acrimony. 

To resolve this problem, decades ago New York enacted Section 881 of the Real Property Actions and Proceeding Law, which provides that when a building owner is undertaking improvements or repairs to real property and needs to enter an adjoining property but the neighbor has refused, the owner can commence a special proceeding in court for a license, and the court has wide discretion what the terms of the license should be.

But recently, a unique situation presented itself to the courts: Does any of this apply to adjoining unit-owners in a condominium? This was the central question in the case of Voron and Argiris v. Newswalk Condominium.

The plaintiffs owned Unit 515 in a condominium in Prospect Heights, Brooklyn, and were planning to undertake a renovation in their apartment. They had submitted plans to the condo board, which approved them. Part of the plans required changes in the waste lines for the toilets. As fate would have it, the building was a concrete structure, and the only access point to sections of the subfloor was through the ceiling of Unit 415.

The owners of Unit 415 were not willing to grant access. They claimed that they had rented the unit to a family with a baby and that the intrusion would be substantial, though the court noted that at the time this case was argued, the family had moved out, and the unit was vacant. The owners also argued that the plaintiffs had not demonstrated the necessity of their access, since they were creating a half-bathroom, which is a luxury. Further, the owners of Unit 415 claimed that Section 881 did not apply to this situation, since, according to them, the law applied only to adjoining landowners, not adjoining unit-owners.

The court noted that there had never been a ruling regarding Section 881’s applicability to adjoining condominium units. According to the court, the key was the wording in the law that referred to the owners of “real property.” In agreeing with the plaintiff that Section 881 applied to condo unit-owners, the court noted that the Condo Act (RPL 339-g) expressly states that “each unit, together with its common interest, shall for all purposes constitute real property.” This allowed the court discretion as to what the terms of the license would be.

The court stated that it was required to balance the interests of the parties and issue a license under reasonable conditions where the inconvenience to the adjoining property owner is relatively slight compared to the hardship of the neighbor if the license is refused. In light of the fact that the plaintiff needed to work in the downstairs bathroom during normal work hours for only two to three days, the court was not very sympathetic to the defendants. The court granted access to the plaintiff for up to 10 consecutive days provided that the plaintiff had insurance, restored Unit 415 after the work was concluded, agreed to indemnify the downstairs neighbor for any damage and paid a fee of $100 a day until the work was done.

The owners of Unit 415 appealed. The Appellate Division held that Section 881 applied and that the original court was within its authority to grant the access under the terms outlined in its decision

There are three important lessons here. First, condo unit-owners who need access to neighboring apartments can find relief from Section 881 if access is denied. A more important lesson is the need to carefully and realistically weigh the risks and rewards of any legal action. Had the owners of Unit 415 calculated the cost of this litigation and appeal, they may have decided to grant the license. After all, if they had negotiated, perhaps the owners of Unit 515 would have agreed on a higher access fee and slightly better terms. Instead, the result was having to cover legal fees and other expenses, plus spending countless hours on meetings, testimony, phone calls and emails.

Finally, when a building gets a request from a neighbor for access, it’s best to attempt to create a reasonable agreement for two reasons. First, if you allow the court to decide, you never know what it will do. Second, though your neighbor may need you this year, next year you may need your neighbor. In the world of constant facade inspections and repairs, neighboring buildings should establish a working relationship rather than a hostile one. In the world of constant apartment renovations and combination, residents of neighboring apartments should do the same.

Andrew P. Brucker is a partner at the law firm Armstrong Teasdale.

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