By Christopher P. Parnagian, O'Hare Parnagian LLP - August 18, 2014
New York City Local Law 11 requires a building’s exterior walls and appurtenances to be periodically examined by a licensed architect or engineer. If the professional finds an unsafe condition, then she must file a report indicating same with the Department of Buildings. When such a report is filed, the building owner must correct the unsafe condition within a prescribed period of time. As part of the correction process, the owner may be required by necessity or practicality to erect sidewalk sheds or scaffolds in front of or above a neighbor’s property, go onto the neighbor’s land or roof, or enter the neighbor’s airspace.
Of course, the general rule is that one must obtain permission to enter another’s property; if permission is not granted, then a trespass may be committed. When, for example, a managing agent of a co-op or condo needing Local Law 11 repairs knocks on the neighboring brownstone’s door and advises its owner that a sidewalk shed or scaffold will be erected in front of and above the brownstone, the brownstone owner may say “no” and slam the door. (Understandably, nobody wants a sidewalk shed or scaffold blocking light and, during inclement weather, dripping water for an indeterminate period of time.)
The foregoing example leaves the co-op or condo in the unenviable position of being required to conduct exterior repairs to its building but not having permission from the neighbor to comply with applicable law and to enter the neighbor’s property so that the repairs can be carried out. Making matters worse for the co-op or condo, any person who violates, neglects or refuses to comply with Local Law 11 may face a fine and/or imprisonment.
A helpful and perhaps underutilized tool for co-ops and condos dealing with adjacent land owners who withhold consent is found in section 881 of the Real Property Actions and Proceedings Law. Section 881 allows an owner (or lessee) of real property to commence a special proceeding for a license to enter the adjoining property. The party seeking the license must show that repairs cannot be made without entering the neighbor’s property and that permission was sought and refused. Section 881 provides that the license will be granted by the court “upon such terms as justice requires” and places liability on the one seeking the license for actual damages to the adjoining owner as a result of the entry. The statute balances the interests of both parties: the owner desiring entry can obtain a license and proceed with the required work, while the owner of the adjoining property can be protected by the terms or conditions imposed by the judge and by the statutory liability upon the licensee for any actual damages to the neighboring property.
The special proceeding may be commenced by an “order to show cause.” Orders to show cause generally accelerate the resolutions of lawsuits. Recently, for example, the O’Hare Parnagian firm obtained a section 881 license on behalf of a co-op client in approximately two weeks after the special proceeding was commenced.
Based on the foregoing, it is recommended that co-ops and condos and even brownstone and other property owners in the City consider the benefits of invoking Section 881 if an adjoining property owner declines to grant consent to enter its property.
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O’Hare Parnagian LLP’s main office is located at 82 Wall Street, Suite 300, New York, NY 10005-3686. The firm’s practices include litigation, business and finance, and real estate. Please call Chris Parnagian (212) 425-1401 if you have any questions about this article or about the firm’s Business & Finance or Real Estate Practice Groups.