Bill Seeks to Streamline Access Agreements for Co-ops and Condos

Access agreements, also known as licensing agreements, are a staple for New York City co-op and condo boards. Whenever boards or their neighbors perform exterior work on their buildings — or when a developer erects a new building next door — access agreements provide vital protection for all parties.

While many neighbors play nice, there are vague areas in the current law that led to disputes, delays and lawsuits.

To address that friction, the state Legislature has just passed a bill and sent it to Gov. Kathy Hochul for her signature that will bring major changes to access agreements. Sponsored by Leroy Comrie, a Queens Democrat, S3799 provides a clear legal process when access to a neighboring building is denied or delayed. It also clarifies insurance requirements and establishes mandatory compensation.

"The original 1968 statute offered only vague guidance and more problematically, it failed to define what constitutes 'refusal' of access, leaving property owners without a clear path forward when neighbors ignore or delay access requests," RAND Engineering & Architecture states in a client advisory. "Without formal mechanisms to address non-response or obstruction, many owners found themselves in legal limbo."

To rectify that common problem, the bill defines "refusal" to include situations where a written request receives no response within a "commercially reasonable time." For co-op and condo boards trying to resist the incursion of their neighbors, silence is no longer golden.

The bill expands the types of access that can be legally compelled to include pre-construction surveys; installation, maintenance, inspection, repair or removal of scaffolding, protective covering, structural supports and vibration monitoring devices; temporary projections into airspace over the adjoining property; temporary or permanent relocation of rooftop elements; and any other actions required by applicable law or good construction practice.

Another key element of the bill is the requirement that the party requesting access must "reasonably" compensate the adjoining owner for the use and occupancy of their property. "In the past," RAND's advisory states, "compensation was not guaranteed, often negotiated informally and applied inconsistently. This uncertainty led to delays, disputes, and drawn-out negotiations that stalled critical work. For adjoining property owners, the new law provides a formal right to compensation that helps offset the disruption of construction and brings greater fairness to the process."

Insurance requirements will also change. The bill requires the access-seeking party to provide commercial general liability insurance for the adjoining property and its occupants. This insurance must name the adjoining owner, and known lessees, as additional insureds, it must contain "commercially reasonable" coverage amounts, and it must be in place before work begins. 

"For access-seeking owners and their project teams," RAND states, "it means insurance coordination should now be considered part of the early planning process. We recommend engaging your insurance broker early so that proper coverage is in place before any access request is made."

Other provisions in the bill require access-seeking owners to provide relevant documents (such as plans, specifications, and schedules) in advance; give courts the power to award reimbursement for such professional costs as architectural and engineering fees; and make it possible for attorneys' fees to be awarded in cases of bad faith or delay by either party.

The days of delays and foot-dragging will come to an end when the governor signs the bill.

"Whether you're a managing agent, board member, or on-site staff, responding promptly and in writing to access requests is now critical," RAND states. "Under the new law, letting a request go unanswered can be treated as a refusal, exposing the building to potential legal and financial consequences."

Overall, the firm gives the bill high marks: "By removing ambiguity and encouraging reasonable engagement, this legislation supports safer, faster construction and repair projects, while protecting the rights of both the party requesting access and the adjoining property owner."