In connection with the collapse of the South Champlain Tower, last month we considered the issue of reserve funds and obtaining engineering information about buildings to plan reserves and spending on major building maintenance. But I have questions about what that maintenance, particularly façade maintenance, really entails.
New York City’s first law requiring façade inspections was Local Law 10 of 1980. This statute was prompted by the 1979 death of a pedestrian struck by a falling brick. The original requirements were for inspections of unset back, public-facing façades of six or more stories every five years. Local Law 11 of 1998 expanded requirements for façade inspections. The program was updated most recently in 2016 with the passage of the Façade Inspection Safety Program (FISP).
FISP requirements are more stringent, with an overall goal of forcing building owners to develop long-term strategies for maintaining building facades. Instead of one drop per exposed façade, there must be one drop for every 60 feet of right-of-way exposed façade. A full-block building requires at least 24 drops. Additionally, there must be at least one physical inspection of the brick ties that connect the face brick to the back-up wall for every drop to ensure that the ties are present and functioning. Finally, the penalties for failing to file reports or perform work timely have been significantly increased.
In order to manage the workflow for FISP, the five-year cycles are in subparts A, B and C. Cycle 9 commenced on February 21, 2020. For more scheduling information, please visit the Façade Report Guidelines page on nyc.gov.
The FISP requirements have increased and standardized. Buildings may be classified as “Safe,” “Unsafe” or “safe with a repair and maintenance program (SWARMP).”
Certain conditions are associated with a building in the SWARMP category. There may not be any “Unsafe” conditions, i.e. a condition that must be repaired within one year. Repairs must have a completion deadline. The repair scope and details and any inspection requirements must be set forth in the FISP report. Regardless of the seriousness or stability of a SWARMP condition, it must be repaired before the next FISP cycle report is due. If it is not, it will be deemed “Unsafe” in the next cycle.
As mentioned above, any condition that must be repaired or corrected within a year is deemed “Unsafe” and the issue and the underlying cause must be repaired or corrected within 90 days. If the repair requires more than 90 days, the building’s architect or engineer must apply for an extension every 90 days.
The corrective plans for both a SWARMP and an “Unsafe” building include public protection such as netting, sidewalk sheds and sidewalk bridges. This public protection must remain in place until the responsible inspecting architect or engineer has filed an amended FISP report changing the status of the building from SWARMP to “Safe” or from “Unsafe” to SWARMP, as applicable.
For cooperative and condominium board members and their managing agents, other aspects of an “Unsafe” filing should be considered. Any correction or repair of an “Unsafe” condition must succeed, or the building will be automatically deemed “Unsafe.”
There may be insurance implications as well. General liability policies do not cover losses suffered by a building due to lack of maintenance or due to neglect. Hence, if accidents arise from the “Unsafe” condition, the building insurance coverage may not be available to cover a loss. Board members allowing such a situation to develop may find themselves defending lawsuits by other unit owners alleging breach of fiduciary duty.
Board members must read and understand FISP reports and understand the steps required to make the building Safe. At this point in time, given the events in Florida, no board member at a residential cooperative or condominium building may credibly claim ignorance of need to maintain building safety. In New York City, a building of more than six stories must have a qualified and licensed architect or engineer providing façade inspection services. Therefore, every board member and managing agent has access to a licensed professional to provide advice on safety requirements. The courts and juries will expect board members and managing agents to avail themselves of available expertise.
This column presents a general discussion. It does not provide legal advice. Please consult your attorney for specific legal advice.
Carol A. Sigmond
Greenspoon Marder LLP
590 Madison Avenue, Suite 1800
New York, NY 10022
carol.sigmond@gmlaw.com
(212) 524-5074
