By C. Jaye Berger, Esq.
We all live in tight quarters in New York City. Everyone has neighbors either in apartments next door, above or below them or in adjoining buildings. When these neighbors engage in construction, it can cause disagreements, damage and often litigation.
The biggest issue with neighbors involves anything to do with damage from construction activities involving banging, drilling, digging and underpinning.
Residential renovations typically involve banging, so cracks are a fairly common complaint. Commercial projects where more stories are being added to an existing building, involve pile driving and underpinning.
Buildings in New York City are very close together and developers are trying to maximize their usable building space by building “in the face” of neighboring buildings. Windows looking out over lot lines can be virtually covered up. In some cases, the new buildings may be less than two feet from the building next door.
This “closeness” can also lead to problems down the road, if repairs are ever needed. There is not much space between the buildings to do repair work.
A larger neighboring building may need to do work right next to or even beneath the neighbor’s smaller building, which can create huge cracks and even a “shift” in the building. Walls may have cracks. Windows may no longer close and the floors may be crooked.
To the extent that the developer has construction crews that can jump in and fix these issues right away, there is some possibility of remedying the problem without litigation.
However, more often than not, these situations lead to litigation, because the dollars involved in performing repairs can be so great that both sides need to have the insurance carriers be involved. No one should assume that insurance carriers will cover such damages though, since there is no occurrence.
Since many construction projects cause damage to neighboring properties, the best advice is to prepare before construction begins.
My advice to clients is “a picture is worth a thousand words.” A pre-construction survey with photographs can be extremely useful in pinpointing when a problem occurred. This should be arranged by legal counsel knowledgeable in construction.
There may also be access issues where the neighbor doing the construction needs to gain access to the neighboring property in order to “protect” it with scaffolding and netting or use as a base for other work.
Even though there is a mutual interest in having “protection,” it does not always mean that the parties will agree on how it is supposed to be done. Sometimes the builders just move right ahead with these activities and the neighbors find out after the fact.
This problem can be difficult to unravel. Other times, they ask for permission and negotiate access agreements. Sometimes the neighbor negotiates air rights or an easement to do something on the neighboring property and money is paid. Some neighbors try to withhold their permission to allow access.
Generally speaking, if all that is needed is access to protect your building, the Court is going to allow it, but there may be special conditions that must be taken into account.
These agreements and the negotiations become more complex when the builder needs more than just protection. The builder may need to perform certain activities from the neighboring rooftop. He may need to “rent” some of the neighbor’s airspace. This can lead to heated negotiations and sometimes to litigation. I have also had such negotiations which have lead to substantial compensation for my client.
A building that has been advised that construction will be commencing next door should be “well armed” with legal counsel. I then assist my client in assembling a team of experts to help understand what the neighbor is planning to do and whether there are likely to be problems.
A current survey is essential. One homeowner found that the neighbor’s contractor had knocked down a small wall between the properties which was actually a retaining wall. A stop work order was issued.
It also raised a question about where the lot line was and whether a fence had been installed too far over on to the neighbor’s property. People who are not prepared find out about problems after the fact, then seek legal counsel.
Anyone in a situation where a neighbor is doing construction work should gear up and be well-prepared for the process before the construction begins.
I advise developers who may need access to approach neighbors in a friendly fashion and to try to smooth out problems before they occur.
