First published: Mar 2023
Access: How Much Are You Offering?
When sidewalk bridging (or other protection or scaffolding) must be installed on adjacent property, the property owners must negotiate an access agreement. But if the parties cannot agree on the terms of the agreement, the law permits the party needing access to bring a special proceeding under RPAPL ยง881, and the court will then decide what is reasonable. In light of the fact that no one can predict what a judge might do, it is best for both sides to be reasonable and to work hard towards an agreement that is fair to both parties. This is especially true when the value of property is easily ascertained, as was the case here, and where the monthly rent received was certainly a good indication of the value of the property per month.
BOARD OF MANAGERS OF BARBIZON/63 V. BOZZO, BOZZO, BONYTHON AND FAHL
REQUEST FOR ACCESS Two buildings stand next to each other on East 63rd Street: The Barbizon/63 Condominium, a 24-story structure, and a three-story single-family townhouse. The Barbizon needed to perform FISP (Local Law 11) exterior repairs on its east side elevation and an inspection of cracking and spalling ornaments at the penthouse level–both of which were directly above the backyard and a portion of the townhouse roof. To do so, it needed agreement from the townhouse owners that it could install the necessary protections, which would cover a portion of the townhouse backyard and roof. The townhouse owners were willing to provide access, but rejected the amount offered for the license fee. That is what brought the two parties to court when the condominium brought a special proceeding under RPAPL §881.
MONEY SQUABBLES The townhouse was rented to a couple who were paying $18,000 a month. The townhouse owners wanted a license fee of $25,000 a month less the tenant’s rental payment. The tenants, who were presumably hopeful of enjoying the rear yard, requested a fee of $8,000 a month. They said the scaffolding would cause privacy issues and diminish the light in the yard, both impacting their use of the space.
IN COURT The court noted that RPAPL §881 was designed to strike a balance between the petitioner’s interest in improving or repairing its property and the harm to the adjourning property owner’s enjoyment of its property. In a recent decision, a court held that a license fee should compensate the licensor “for loss of enjoyment of their property and the diminution in value due to loss of use.”
The court reasoned that since the tenant’s monthly rental was $18,000 (agreed to before the tenants were aware of the impact of the condominium’s work on the rear yard), the townhouse owners should be compensated a monthly license fee of $18,000 minus the rent paid by the tenants (but no more than $9,000). Since the tenants’ lease was expiring during the course of the condominium’s work, the court also held that if no one rented the property after the tenants left, the fee would equal $9,000. In the event new tenants rented the property and paid more than $18,000, the townhouse owners would be entitled to $1,000 per month. The court further held that the condo would have to pay the tenants a fee equal to $4,000 per month.
In addition, the townhouse owners and their tenants were awarded reasonable attorney and engineering fees, as the court recognized that a “property owner compelled to grant a license should not [have to] incur the costs … to ensure [licensee’s] work will not endanger his property…”
COUNSEL: For the board: Rosalie Valentino, Kagan Lubic Lepper Finkelstein & Gold; For townhouse owners: Glenn Spiegel, BECKER & POLIAKOFF; For townhouse renters: Andrew Wagner, Devin Ness HERRICK, FEINSTEIN: JUDGE: Paul A. Goetz
