Court Grants Access to Adjoining Properties for Necessary Repairs

When doing repairs on your building requires access to an adjacent property, boards typically enter into an access or license agreement, which includes a fee that the co-op or condo doing the work must pay the affected building for the lost use or interference caused by the access. But sometimes neighbors aren’t so neighborly, as was the case in  Board of Managers of the Columbus House Condominium v. NY7900 Holdings LLC, Et Al.

THE DETAILS 

Columbus House, an 18-story mixed-use condominium on the Upper West Side, needed to do repairs under the city’s FISP program, which required installing protections at three adjoining buildings. It began requesting access in May 2022, contacting the property manager as well as the owner of the buildings to get the necessary licenses. The owner never retained an attorney or other professional for representation, never returned the signed license agreement and eventually became unresponsive. 

Columbus House delivered two demand letters requesting access. These provided the approved plans, the size and location of the work, a summary of the necessary protective measures and their impact upon the adjoining properties. Columbus House also enclosed a proposed license agreement in which it agreed to remediate damages caused by the FISP work, agreed the board would defend and indemnify the adjoining owner from claims arising out of the work, and agreed to pay attorney fees incurred in negotiating and enforcing the agreement. The proposed license agreement also established that a superintendent would remain on site during construction and that all work would be lawfully conducted with the proper permits from the Department of Buildings.

IN COURT 

Columbus House sought an order granting it access to the adjoining properties under Section 881 of the Real Property Actions and Proceedings Law (RPL 881), as well as declaratory relief pursuant to CPLR 3001, which would require that the adjoining property owner pay for the costs of completing the FISP work. The adjoining property owner failed to answer or oppose the petition. On default, the court determined that the condo board had shown it needed to install necessary protections and that to do so properly, it must enter the adjoining property. The court granted the petition for the board to enter the requisite portion of the adjoining properties, and to install, maintain and remove necessary FISP protections for a duration of six months. The court, however, declined to find that the adjoining property owner was responsible for the costs of completing the FISP work. 

THE LESSON FOR BOARDS

 Enacted in 1968, RPL 881 was designed to address the needs of building owners who need access to a neighboring property in order to perform improvements or repairs to their property. When that can’t be agreed upon amicably or a request isn’t even acknowledged, as was the case here, RPL 881 provides a legal framework for obtaining court orders to gain access to a property. Note that Columbus House began requesting access in May 2022, and finally received a court decision granting it nearly 15 months later, underscoring the need for boards to pay attention to FISP timetables, particularly if an access agreement is necessary. 

COUNSEL 

For Columbus House Condominium Board: Belkin Burden Goldman 

Lauren Lewis is an associate at the law firm Norris McLaughlin. The statements and views in this article are her own and not necessarily those of the firm.