Wait Till Next Year: Reforms to Access Agreements Die, For Now

For co-op and condo boards performing mandatory work on their building’s exterior, an access agreement, or licensing agreement, with neighboring properties must be secured before work can begin. But these agreements have become a growing source of contention between neighbors. Sadly, bills that would have brought needed reforms to access agreements failed to become law during the recently concluded session of the state Legislature. Here’s why the eventual passage of the bills would benefit co-ops and condos:

A lack of leverage. When boards perform repairs to facades or other exterior building elements, they often need to get access to their next-door neighbors’ property to erect scaffolding, lay down protections or cordon off open areas.  

Here’s the problem. By the time a board is ready to ask its neighbors for permission to enter, it has already gone through a lengthy and expensive process to determine the scope of work, bid out the project, choose a contractor, negotiate a contract, make submissions to the Department of Buildings and secure permits. Boards are often running up against deadlines. Moreover, because they are required by law to do the work, they have little leverage in negotiating the terms of the access agreement.

And the neighboring buildings may not have any incentive to cooperate. They don’t have to voluntarily grant access, and they might prefer for the work to happen later rather than sooner. Thus they may feel emboldened to slow-walk the negotiations or ask for exorbitant “access fees” as a condition to granting access.    

An unappealing option. Going to court is an option, but under current law, it is not an appealing one. Section 881 of the New York Real Property Actions and Proceedings Law (RPAPL), which governs access to neighboring buildings, allows courts to grant licenses “upon such terms as justice requires.” However, the law does not contain guidance for what license terms are appropriate, or any obligation by the parties to negotiate in good faith. In addition, some courts will simply rubber stamp the terms of access previously dictated by the neighboring building.  

As a practical matter, boards launching major capital projects are eager to get the job moving, and they often feel they have no choice but to acquiesce to what they believe to be unreasonable demands of their neighbors.

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Legislative relief. Two bills were introduced in the 2023-2024 session of the state Legislature that would make it easier for building owners to get the access they need to comply with the Facade Inspection and Safety Program, formerly known as Local Law 11. The Senate bill was introduced by Sen. Leroy Comrie (D-Queens) and the Assembly bill by Assembly Member Jenifer Rajkumar (D-Queens). 

Perhaps most importantly, both bills would impose penalties if parties “acted in bad faith or engaged in willful misconduct in seeking, denying, or conditioning its approval of the rights of entry.” The hope is that if the owners of neighboring buildings understand they potentially could suffer negative consequences for either refusing to cooperate or for making unreasonable demands, boards will be able to secure access more promptly and on more reasonable terms, without needing intervention of the courts.

The proposed legislation laid out some of the terms that should be included in any license, such as the need for reasonable notice provisions and appropriate insurance. The bills also make clear that neighboring buildings are entitled to reasonable compensation for their out-of-pocket professional fees and for the temporary loss of use of their space. The operative word here is “reasonable,” not “extortionate.” 

Unfortunately, while the bill passed the Senate, it never made it out of the Judiciary Committee in the Assembly. However, the problems described above are not going away, so co-op and condo boards should be hopeful that this or similar legislation will be introduced — and passed — in the next legislative session.

William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer.