A lawyer discusses neighboring properties and access agreements - by C. Jaye Berger

Let’s say you live in or own a building and one day it becomes apparent that the party that owns the property next to yours is about to do some major construction. It can be anything from a major renovation of the existing building to tearing down the existing building and constructing a new, much higher building. The scenario can go from your building having no idea that this is going to occur to panic that nothing has been done to prepare for this scary eventuality. There are several different scenarios of what may happen. There may be contact from the developer’s “camp” asking to meet with your representatives to discuss certain issues or there may be no contact at all. You just see that things are happening. The latter is the scariest, because you have no idea what is happening or who to contact. All you know is that a mysterious “LLC” ie. limited liability company is starting work right next to your building. What do you do first? The first thing to do is to contact a lawyer who is experienced in this area of construction law. A building owner called me recently for this very purpose. The next step is to start assembling a team of professionals for the work ahead. Knowledge is power. You need to know what the neighbor is up to, even if they are not contacting you to discuss those plans. This is where your team can be useful. You can have a building department expediter locate the plans filed with the NYC Department of Buildings so you can see what is being planned. As part of doing that, you may be able to locate a recent survey. Being able to pinpoint the property line between the properties is key. Do not “assume” that the developer has meticulously designed his project to be 100 % on his side of the property line. Whether it is intentional or not, the developer may be planning to do some work that might ever so slightly cross over the line on to your property and you want to catch that before it is actually built, when it is too complicated to tear it down. One developer’s survey was “fuzzy” about the exact property line, which resulted in the developer “planning” to have the new wall of the new building on what it believed to be the property line, based on the fact that a big cement wall had always been in that location. It turned out, based on the survey I ordered be done, that it was a few inches on my client’s property. Those few inches caused the developer to re-design its wall and opened up a dialogue about other issues that needed to be sorted out, including compensation to my client for all the inconvenience and “access” to their property that would be needed over the course of the two year project. Developers are required to do a pre-construction survey before work commences to confirm the condition of the adjoining property. That is a good idea, whether it was mandated or not. However, I always ask my clients to consider having their own pre-construction survey performed as well. Remember, the developer is documenting what he wants to focus on or not focus on. He is not required to document every detail in every apartment and hallway. He may not want to document the condition inside the apartments. He may want to paint a broader picture than what you want. If it turns out that there is no photograph of how the area looked at the time that work commenced, it is harder to blame the cracks on the developer and easy to say it is just due to the old age of the building and poor maintenance. If the developer next door has chosen to be mysterious and has not had any need to contact your building, then no one may be thinking about having a survey done until the damage has occurred. This is why contacting legal counsel and forming a team is so important. Most neighboring property owners will allow access for such surveys, but failure to allow access for such a survey can work against a property owner claiming damages later on. Such surveys make damage from excavation less likely to occur and both sides are on the same page as far as the condition of the property when the work commences, so it is easier to pinpoint when the damage occurred. When the developers have work that requires access to the adjoining property, such as to install scaffolding or to be able to come and go with materials in an alleyway between the buildings, it creates the need for an open dialogue between the two properties. The developer wants to get something done and he needs to be able to have access to the adjoining property to do his work without the constant threat of court action. Ideally these negotiations should culminate in a written, signed “Access Agreement.” For example, if the developer knew that the adjoining property owner would be a happier, “less likely to complain” neighbor and would give him access more easily, he might be more likely to install monitoring equipment sooner rather than later in the project and perhaps even offer to pay some money for the access license. Often these issues are negotiated up front before the work begins in earnest. Thus, although some access is mandated by law, such as sidewalk bridging, the parties’ lawyers can negotiate whatever else is needed, such as insurance, protection over the windows of apartments and roof protection, and hopefully eliminate some of the potential problems and litigation down the road. C. Jaye Berger, Esq., is the principal of Law Offices C. Jaye Berger, New York, N.Y.