First published: Oct 2023
How Many Times Do I Have to Ask?
TAKEAWAY Section 881 of New York’s Real Property Actions and Proceedings Law was enacted in 1968. It was designed to address the needs of building owners who needed access to a neighboring property so they could perform improvements or repairs to their own property. Building owners turn to RPL 881 when access can’t be agreed upon amicably, or in the case of the Columbus House, when an access request isn’t even acknowledged. RPL 881 provides a legal framework for obtaining court orders to gain access to a property. Co-op & condo boards should pay attention to FISP timetables, particularly if an access agreement is necessary. Note that Columbus House began requesting access in May 2022, and finally received a court decision granting it nearly 15 months later.
BOARD OF MANAGERS OF THE COLUMBUS HOUSE CONDOMINIUM
V. NY 7900 HOLDINGS LLC, ET AL
WHAT HAPPENED The Columbus House Condominium is an 18-story mixed use building between 78th and 79th St. on Columbus Avenue. It needed to begin required facade work under the city’s FISP program (formerly known as Local Law 11). To do so, however, required Columbus House to install protections to three adjoining buildings. It began requesting access in May 2022, contacting the property manager as well as the principal of the buildings to get the necessary licenses for access. The adjoining property owner never retained an attorney or other professional for representation, never returned the signed license agreement and eventually became unresponsive.
THE REQUESTS There was no question that Columbus House needed to provide protection to the adjoining buildings, and it delivered two demand letters requesting access to do so. These letters provided the Building department’s approved plans, a summary of the necessary protective measures which the Columbus House was required to install and their impact upon the adjoining properties, detailing the size and location of the work in the affected areas. The Columbus House also enclosed a proposed license agreement with the demand letters. Under the terms of the proposed license agreement the Columbus House agreed to remediate actual damages caused by the FISP work, contemplated naming the properties’ managing agent as an additional insured on the contractor’s insurance policies, agreed the board would defend and indemnify the adjoining owner from claims arising out the work, and agreed to pay attorney fees incurred in negotiating and enforcing the agreement. The proposed license agreement also established that a superintendent would remain on site during construction and that all work would be lawfully conducted per the Department of Building’s governance with proper permits.
IN COURT Columbus House sought an order granting it access to the adjoining properties under the Real Property Actions and Proceedings Law (881), as well as declaratory relief pursuant to CPLR 3001 (which would require that the adjoining property owner pay for the costs of completing the FISP work). The adjoining property owner failed to answer or oppose the petition. On default, the court determined that the condominium’s Board of Managers had shown it needed to install necessary protections to complete the FISP work in compliance with local laws, and that to do so properly, it must enter the adjoining property. The court granted the petition to the extent of awarding the Board a license to enter the requisite portion of the adjoining properties, and to install, maintain and remove necessary FISP protections for a duration of six (6) months. The court declined to find that the non-appearing adjoining property owner was responsible for the costs of completing the FISP work.
COUNSEL For Columbus House Condominium Board ROBERT HOLLAND Belkin Burden Goldman / Judge Denise Dominguez