In many instances a developer or owner doing work to its property may need to gain access to the neighboring property for the protection thereof during the construction. Such access may include installing physical protection measures but may also include access for a pre-condition survey, inspection or monitoring. In many cases access is into common areas, but there are occasions when access into individual units or living space is needed.
Section 3309.2 of the New York City Building Code (the “Code”), states as follows:
License to enter adjoining property.
The responsibility of affording any license to enter adjoining property shall rest upon the owner of the adjoining property involved; and in case any tenant of such owner fails or refuses to permit the owner to afford such license, such failure or refusal shall be a cause for the owner to dispossess such tenant through appropriate legal proceedings for recovering possession of real property. Nothing in this chapter shall be construed to prohibit the owner of the property undertaking construction or demolition work from petitioning for a special proceeding pursuant to Section 881 of the Real Property Actions and Proceedings Law.
The italicized portion represents new language from the 2014 Code revision.
In years past, if the neighboring property was a condominium, there was a heightened concern that obtaining access into an individual unit would mean dealing with the individual unit owner since they had a real property ownership in the unit, as opposed to cooperative apartments or rentals. As to the latter, the language in Section 3309.2 seemed to support that the position that owners of the real property had the power to grant access, and it flowed therefrom that owners were responsible to get access to the space occupied by cooperative or rental tenants. However, the courts have entertained cases brought by tenants individually or an owner together with tenants, which has change the nature of the negotiation. Many owners of real property now say that they will make some efforts to gain access for the developer into the rental or cooperative units (or in some cases to a condominium unit which has been sublet) but will not guarantee such access nor will they undertake to bring a legal proceeding for such access, unless the developer seeking access pay for such proceeding, and in some cases, not even then. Knowing early on whether access into individual unit(s) will be needed and the ownership interest of unit occupant(s) will be critical in the negotiation process.
Greenberg Trager & Herbst LLP has extensive experience in how to deal with this issue as well as all other issues in regards to accessing neighboring properties during construction. For further information, please contact us.