2. MEET THE SPEAKERS
Robert A. Banner, Partner
Ingram Yuzek Gainen Carroll & Bertolotti
Jessica L. Rothman, Partner
Ingram Yuzek Gainen Carroll & Bertolotti
3. STATE OF THE MARKET
Construction in New York City
continues to boom.
As an owner, developer or
project team member, you need
to understand how your project
impacts the adjacent properties
and what you are required to do
with respect to these properties
under the building code.
*Credit: New York Building Congress- NYC Construction Outlook
Update 2016 https://www.buildingcongress.com/outlook/
4. YOU NEED TO KNOW...
• Why you need access
• What the law requires
• How to comply
5. WHY YOU NEED ACCESS
• The proximity of buildings and
the scale of construction poses
risks to adjoining properties.
• New York City Building Code
requires the owner or
developer performing
construction work to protect
adjoining properties.
6. WHAT THE LAW REQUIRES
§ 3309.1
Protection must be
provided for
footings,
foundations, party
walls, chimneys,
sky-lights and
roofs.
Provisions made to
control water run-
off and erosion
during
construction or
demolition
activities.
§ 3309.4
If performing
excavation work
protect adjoining
property from
damage by
appropriate means
and at own
expense.
§ 3309.6
Property owner to
monitor the
ongoing effects of
construction on
the adjoining
properties to
ensure that no
damage occurs.
7. WHAT THE LAW REQUIRES
Notification is required.
• Written notification at least 60 calendar days prior to the
commencement of work.
• Notification shall describe the nature of work:
• Estimated schedule/duration
• Details of inspections or monitoring to be performed
• Protections to be installed
• Contact information for the project.
• If no response, a second notification shall be made no more
than 45 days (not less than 30 days) prior to commencement
of work.
8. • To comply with these codes you need access to
adjoining properties.
• Access requires a license, which can be given
voluntarily by the adjoining property owner or,
in some circumstances, compelled by court
order under New York Real Property Actions and
Proceedings Law Section 881.
HOW TO COMPLY
9. KEYS TO SUCCESS
Enter into a license agreement to:
• Minimize cost and duration of your project
• Get access early to do what is
necessary to complete your project.
• Comply with DOB requirements
• Avoid project disruptions
(Avoid/minimize 311 complaints)
Establish Good Relations with the Adjoining Property Owner
11. TOP 10 CONSIDERATIONS
11
1. Define the full scope of the access work.
• Provide detailed plans for access work
• Include terms in License Agreement that also permit you
to comply with any unstated building code requirements.
13. TOP 10 CONSIDERATIONS
3. Conduct a pre-construction
survey.
• A pre-construction survey of the
adjacent properties (exterior and
interior) should be conducted by
your contractor or consultant
prior to commencement of any
work.
• Adjoining property owners
typically request copies of the
survey.
14. TOP 10 CONSIDERATIONS
4. Protect & Monitor.
• The adjoining property should
be protected and monitored
during the construction work.
• Depending on the project,
vibration and movement
monitoring may also be
required.
15. TOP 10 CONSIDERATIONS
5. Insurance.
• Insurance should be provided by the
owner/developer and the contractors in compliance
with building department requirements at a
minimum.
• Adjoining property owner should be named as
additional insureds.
• Owners/Developers should make sure the contractors
maintain the insurance for duration of the project.
16. TOP 10 CONSIDERATIONS
6. Indemnification
• Limit reimbursement to
damages arising out of the
defined access work to the
extent the work was negligently
performed.
• Pass through to Contractors
• Critical to have pre-existing
conditions documented
(pre-construction survey).
17. TOP 10 CONSIDERATIONS
7. What happens if there is damage to adjoining
property?
• Immediately document the alleged damages.
• Notify insurers of circumstances that might give
rise to claims.
• If possible, agree on scope & timing of repairs.
• Consider who will pay repair costs.
18. TOP 10 CONSIDERATIONS
8. License Fee
• Consider whether a license
fee should be paid to
adjoining property owners.
• Court can impose: Law
requires you to trespass on
adjoining property.
• Risk v. Reward: Small price
to pay for less conflict.
19. TOP 10 CONSIDERATIONS
9. Consider whether legal fees and consultant
costs should be reimbursed.
• Limit to review of access plans and negotiating
agreement.
• Reasonable rates.
• Keep in mind that courts award
these fees.
20. TOP 10 CONSIDERATIONS
10. Set up a process for receiving
communications or complaints
• Contact Person:
Minimize interference
with work by supplying
adjoining property owner
with contact person to
call or email with issues.
• Project Hotline Number:
Avoid 311 complaints in
the first place.
