The Hidden 42”

Ever seen an enclosed balcony? “A balcony enclosure can be one of two things,” says attorney Abbey Goldstein, a partner at Goldstein & Greenlaw. “One is you put up a simple plastic or other covering around it so when you go out you don’t have to deal with wind and the elements. It could be screened – some people call that a ‘Florida room’ or sunroom. And the other is people making them into actual rooms. They’ll knock down the walls and enclose [the area, so it becomes] an extension [of] the apartment.”

Many co-op and condo owners in high-rises have such enclosed balconies and boards are now facing new questions. Among them: How do they fit in with required façade inspections? What are their legal status? What do they do to your building’s floor area ratio (FAR), a measure of your building’s maximum allowable use?

Here’s a review of what you need to know:

When Are the Façades Inspected?

Under Local Law 11, now called the Façade Inspection and Safety Program (FISP), buildings taller than six stories require a façade inspection every five years. The pertinent law is Rules of the City of New York (RCNY) Sections 103-04, amended May 17, 2013, to mandate balcony-railing inspections. These must be done by a Qualified Exterior Wall Inspector (QEWI), which the city defines as a state-licensed civil or structural engineer or a state-registered architect, both with a year’s relevant experience. The Department of Buildings, which oversees FISP, allows inspectors to look at a representative sample, rather than every balcony, based on their professional judgment.

What does a QEWI physically do at your building? “We have a lever we use with a pressure gauge on it, and put a load to the railing,” explains engineer Eric Cowley, principal at Cowley Engineering. “It takes a two-man team: one applies the apparatus, the other sketches the railing and reads the data. Usually we apply a 200-pound load to the top rail. If it passes that without breaking or bending, we’re pretty confident the railing is okay. We also test the posts.”

And there’s more than just load-pressure to examine. “With aluminum railings, as opposed to steel railings, it’s a little more difficult to determine the condition because there’s no obvious corrosion,” he says. “The weakness in aluminum is masked – you don’t notice the weakness until you apply a load to it and it either bends or breaks. We had one client with an aluminum railing with glass panels. We used a suction cup to pull on a panel – it immediately broke before we got to the proof load. That condo [board] is in the process of replacing all the railings.”

What Are the Types of Balcony Enclosures?

When a balcony is enclosed, the process can be as simple as nailing screens to a wooden frame or as elaborate as knocking down part of the outer wall to extend an extant room. Even the simpler of these two types can present safety issues. “People do install screen enclosures on their balconies,” says Cowley, “and the Department of Buildings (DOB) requires people to get permits for screens and divider walls” so that they’re compliant with wind loads. And for good reason. “We had a divider wall with a gate in it blow off a building on East 62nd Street – [and land] on a building next door.”

Additionally, Cowley says that owners “have put in wood decking or tile that raises the floor level to where the railing height is no longer compliant,” meaning at least 42 inches high. “On a job [at] Riverside Drive, the board issued a new rule and we removed [such decks] and measured [the railings] to make sure the heights were compliant.”

What Should the Board Position Be on Enclosures?

When must balcony enclosures be altered? “You open the sliding door and you have a step down onto the balcony, and many of our seniors had somebody build a wooden subfloor on top of the concrete floor so that the step down was not so significant,” observes Brendan Keany, the general manager at the 10-building, 2,820-apartment Chelsea co-op complex known as Penn South. “And sometimes they’d put [in] indoor/outdoor carpet.”

In every instance of this, he says, this meant the railing was now less than 42 inches from the raised floor. “So we had to insist – and we did it at our expense – on removing the subfloors.” That height requirement becomes moot in the case of completely enclosed balconies with walls or with windows serving as walls, notes Jacobs.

Do the enclosures need to be removed for a FISP inspection? Not necessarily. Herb Kamens is a longtime board member and current secretary-treasurer at the two-building Carlton co-op in Lindenwood Village, Queens. “The last time we redid the balconies [with painting and waterproofing] about eight or nine years ago, we insisted that people take off their enclosures. And it hurt a lot of people because when they took the enclosures off they couldn’t put them back properly and [the enclosures] collapsed,” he recalls. “Through the years, most of the enclosures eventually returned and others were put up. Now the cooperators are a lot older,” says Kamens. “So in speaking with the painter and the waterproofer, we decided to leave the enclosures up and only [take them] down where it was necessary in order to do a satisfactory job. Only one had to come down,” he says, because inspection found that the homeowner “had so much damage on her balcony, they had to do an extensive [repair] job and couldn’t [do so] with the enclosure there.”

In this case, the co-op, at its own expense, re-installed the enclosure in its original form, Kamens said.

Can an inspector do his job despite the enclosure? “If the room they created allows you to check the balcony to see if it’s safe, I don’t have a problem with it,” says Adam Leitman Bailey, principal of his namesake law firm. If you can’t touch the balcony or see if screws are missing [or] check the structural soundness, then it needs to be altered,” if not removed outright.

Kenneth Jacobs, a partner in the law firm Smith, Buss & Jacobs, agrees. “You walk in with a yardstick and measure the height of the railing,” he says. “Does it wobble?” And can an architect or engineer using a pressure gauge place it against the railing even when the balcony is enclosed? “We represent something like 275 [co-op and condo] associations. No one has come to us about removing enclosures pre-inspection,” says Jacobs. “The only problems I’ve had are [in the post-inspection] problems.”

Indeed, if the architect or engineer has uncovered issues, then the enclosure may have to be removed for work to be done. “Typically, it would be because there are leaks from a balcony and the engineer determined the enclosure caused or exacerbated the leak,” says attorney Aaron Shmulewitz, a partner at Belkin Burden Wenig & Goldman. “Maybe the enclosure was not built according to code or it shifted an inch or two over the years, which creates openings for water to go through.”

When Does the Law Say Enclosures Must Go?

Enclosures may need to come down for legal reasons. “We had an enormous amount of these things installed before there were any regulations about them,” says Penn South’s Keany, echoing a common refrain. Adds Goldstein: “I heard of a lot of them going up when you had boards [that were not proactive] or boards controlled by a sponsor who didn’t care.” And so throughout the city, enclosures went up in a variety of ways: some with both Department of Buildings permits and board approval, some with just one or the other, and some with neither. And now each presents boards with a different scenario.

If they’re up to code, it’s the board’s call. With legal enclosures that are up to code, no one surveyed suggested any need to demand their removal other than for what they variously call “political” or “aesthetic” reasons. “In many places,” says attorney Geoffrey Mazel, a partner at Hankin & Mazel, “the boards have been inattentive and you have non-uniform balconies with different designs, and most boards find it doesn’t look good and it’s not valuable to the building.”

Enclosures put up without DOB permits could remain in place. “Most of the time when the city [issues] a violation against a unit and the violation has to be corrected, the city inspects [afterward] and certifies the violation has been [fixed]. That happens all the time,” says Jacobs. In such cases, he says, boards need to follow up with the homeowner and obtain copies of the DOB certification and receipts showing that fines were paid. If there was no alteration agreement, make the owner sign one as a condition of any enclosure’s continued existence. And whether there was an alteration agreement or not makes no difference in the city’s inspection and permit requirements, says Jacobs. “Just because the board consented doesn’t mean [the homeowner] doesn’t have to comply with the laws.”

Limited-use “seasonal” enclosures may be acceptable. Jacobs also notes that the city acknowledges “temporary or seasonal enclosures,” referring to the building code, which says heating isn’t required when “the occupancy is seasonal and the rooms or buildings will not be occupied between November 1 and May 1 of the following year.” While that addresses a narrow issue, it establishes a definition that many in the real-estate industry use as a general rule to distinguish between permanent living space and, basically, a covered porch. Penn South, for instance, will allow residents to put up a seasonal room but not a permanent room. Many people use it for storage, some as a seasonal little office, but it’s understood that it’s not a full, certified room.

Other Legal Issues

The enclosures could jeopardize your floor area ratio. If an enclosure is a certified room it brings up a subtle issue boards must consider: does an enclosed balcony change your building’s floor area ratio (FAR) (a measure of your building’s maximum allowable use)? Whether a balcony enclosure will add to your FAR “depends on whether you can characterize it as temporary enclosure,” says Jacobs. “If a building is fully built already [to maximum FAR], then any permanent enclosure would be violation of zoning laws.” In a related issue, says Goldstein, “you’re not adding a [permanent] room [so] you don’t have to amend the certificate of occupancy.”

Your taxes could go up. However, Goldstein notes, “You’re improving the unit – increasing the value as a result of alterations. In theory, that can increase real-estate taxes.” And the city keeps tabs. “When you get a [DOB] permit it’s reported to the Department of Finance,” he says. “Some boards will get some indemnification [from the apartment-owner] for any increase but you don’t generally know how to allocate it – you don’t know how much is attributable to that enclosure.” Depending on many factors this may or may not be an issue; talk to your accountant.

You may have to reallocate shares. Finally, do enclosed balconies require boards to reallocate shares? “Theoretically, when someone bought the apartment, the balcony had shares allocated to it, as opposed to apartments without balconies,” says Timothy Grogan, president of the management firm Grogan & Associates. “Boards have to determine if the value of [an] apartment is worth more based on the value of outdoor space versus indoor space.”

When Must Enclosures Be Removed?

So if, after all these considerations of legal, aesthetic, and other issues, a board decides that an enclosed balcony has to come down and not go back up – what then?

When do you remove an enclosure? “The owner will scream and moan and say, ‘How dare you?’ and offer 17 reasons not to do it,” Jacobs warns. Among the arguments, he says: “It was there when I bought it. There’s no alteration agreement, so how do you know the co-op/condo didn’t install this? You’re the one who has to make the structural repair” – which is true – “so, therefore, you’ve assumed all the responsibility for repairing and replacing anything I built” – which is not true except for something “like an earthquake, because that would be a casualty, and casualty losses differ from repair and maintenance.”

Who pays for removal of the enclosure? And who pays for the enclosure’s removal? “An argument could be made either way on cost,” says attorney Shmulewitz. “The co-op owns [or the condo board administers] the building and you were allowed at some point to install [it] and assumed the risk that at some point it may have to come down, so the [apartment-owner] should pay for everything. The counterargument is, ‘Everything was fine until you (the board) decided to remove it. I understand you need to make repairs, but here’s my engineer’s report saying my enclosure is not causing the leak, and even if it is, I’ll pay for removal but the co-op must pay to reinstall.’ Conversations like that happen every single day and often lead to litigation.”

A lawsuit should be avoided if possible, since it raises the stakes and expenses for everyone, and the board might not necessarily win. “The unit-owner or shareholder should pay for it,” argues Jacobs, “because when they put up [the] balcony, the alteration agreement should have said that the owner, at the demand of the co-op or condo, must remove any alterations in order to allow inspection or repairs. In theory, the owner removes the enclosure, the repair is made [at the co-op/condo’s expense] and the owner restores the enclosure at the owner’s expense.”

Still, as Jacobs stresses, that’s in theory. In reality, he says, “buildings frequently make a monetary concession of some sort. It makes the owner feel better. If it’s going to cost the owner $10,000, the building says it’ll pay a couple thousand. That may be the most expeditious way of handling it. I tell boards what their rights are and then say, ‘Look, put yourself in their place. You may save yourself legal fees if you volunteer to pay a little bit. You absolutely want to keep it out of court. I generally find that patience and a few concessions here and there can solve the problem.”

But not always. In his experience, Jacobs recalls, it was only a major problem once. “But that was with a huge terrace with planters and,” the attorney adds with a laugh, “the homeowner was a lawyer.”