Over the last 10 years, neighbors of developers have increasingly viewed RPAPL §881 as a revenue device, seeking payment from developers and neighbors for safety protections that do not impair the use of the property. Sadly, there have been significant damaging events to adjacent properties from demolition, certain underpinning operations, excavation, and construction.
The New York City Department of Buildings (DOB) is hoping to change the emphasis from revenue to safety. RPAPL §881 provides that adjacent property owners must accommodate neighbor requests for access, so long as the intrusion is necessary, there is a defined time period for the work on the neighbor property, the intrusion is temporary and the developer provides full indemnity and insurance. Courts may require payment of reasonable fees for a loss of use or expense imposed.
Two important principles will help focus this. First, the neighbor has no obligation to invest in the development, directly or indirectly. Second, the neighbor is to be held harmless for all cost, liability, expense and damage to their property both real and personal.
DOB increased the design requirements on developers. Among the most significant changes to the New York City Building Code (NYCBC) impacting neighboring properties are detailed investigations and evaluations of adjacent property pre-filing of demolition or excavation plans, providing DOB and the neighboring properties with detailed options for lateral support of adjacent properties during demolition and excavation and expanded requirements for tenant protection plans. Perhaps the most significant change for adjacent properties is the requirement that developers and their design teams appraise and evaluate adjacent properties both as to the structure and the soil.
Adjacent properties will need to retain architects and structural engineers (including geotechnical engineers) before a developer has plans for construction. Adjacent properties will need to have their own teams to participate in the fact-gathering phase and then review and comment on the evaluation of their property and the developer’s plans that may implicate that property. Cooperative and condominium buildings will be well advised to have their own engineers and architects monitoring the process.
The other major change relates to tenant protection plans. When the demolition involves a party wall for an occupied building or the excavation permits work on the neighboring property such as underpinning or anchor bolts, the NYCBC now appears to require a tenant protection plan for the affected neighboring property. This plan will have to be prepared by the property owner’s design team at the expense of the developer.
This column presents a general discussion. This column does not provide legal advice. Please consult your attorney for specific legal advice.
Carol A. Sigmond
Partner
Greenspoon Marder LLP
590 Madison Avenue, Suite 1800
New York, NY 10022
carol.sigmond@gmlaw.com
(212)524-5074
