This handout provides some information about your rights as a property owner adjoining construction, including a list of steps you may wish to take in order to protect your property from damage often caused by increasing construction and development in all boroughs of New York City.
- Research Plans: If a property adjoining yours is sold, the new owner/developer may want to demolish and build a larger new structure or substantially renovate. A current owner may also decide to do so. You can research their applications for work permits online by going to nyc.gov, scrolling down to the bottom of the page, clicking on “Directory of City Agencies,” then on “Buildings Department.” Go to BIS (“building information services”) and enter the address of the building on which you’re seeking information. DOB has created a new section of its website in the past couple of years, called DOB NOW, which is accessible through links in the BIS system. In this section, you may find information on current filings/permit applications, and their status as they work their way through DOB. By clicking on these entries, you can locate information on what may be planned. Look especially for documents for “new building” or that include the word “underpinning.” Underpinning means that if you share a party wall with that property or are within ten feet of the property line, that the applicant plans to dig under the exterior wall of your property, or along the shared property line. Also look for applications for permits that indicate that the applicant wants to (a) add stories or an extension to the building, which may also require scaffolding (a platform that extends onto or over your property), or (b) to site his construction fencing temporarily on your property (this is called “encroachment”), or(c) excavate to pour a new foundation on the property. Check the nyc.gov website frequently, because the more advance notice you have of the owner’s intentions, the better.
- Go to Your Borough’s Homeowners Night: If you find that underpinning, encroachment or excavation is planned (or if you can’t figure out what the adjoining owner plans to do, or just want more information), you can attend a session at the Department of Buildings’ weekly Homeowners Night in your borough (you can find the hours of each on the Department of Buildings area of the nyc.gov website). There, you can sign up to meet with a NYC Plan Examiner. If approved plans are available, the examiner will review them and answer your questions about any permit applications on the property. The applications will also include contact information regarding who filed for the permits (also available on the nyc.gov website cited above).
- Don’t Enter into Agreements Without Advice from Your Own Attorney
a.) NYC Regulations and NYS courts recognize the right of an adjoining owner to a written agreement in cases where underpinning, excavation, or encroachment is planned. These agreements are called Licenses. DO NOT SIGN ANYTHING THE ADJOINING OWNER OFFERS YOU, or even discuss it with them, without consulting a qualified attorney who only represents you, and who specializes in construction law.
b.) Do Not Simply Refuse to Allow Permanent or Temporary Encroachments on Your Property. New York State Law and the City’s Regulations specifically protect the rights of all property owners to “improve” their properties, and if a developer claims you are refusing to negotiate a license agreement, they may file a special “881” claim in court, which could force you to allow access to the developer on the developer’s terms. However, State Laws and City Regulations also recognize your rights to be represented by your own construction attorney and licensed structural engineer, and a license agreement negotiated with their assistance can help you to control the activities of the developer.
c.) Your attorney, working with a qualified structural engineer, will review the developer’s plans and negotiate a license agreement with them. This license agreement will state what the developer can and cannot do, and how they will protect your property from damage during their activities. Get the construction attorney first, as each construction attorney will have engineers they prefer to work with. Do NOT hire an attorney who is a generalist or specializes in real estate. Construction law is highly technical, and while some other legal areas such as land use and real estate law are related, and attorneys with general practices may also know something about license agreements, only a construction law specialist will be able to help you adequately if the worst occurs, and you are forced to sue.
d.) A license agreement may include needs specific to youfor example permissible hours for construction, protection of trees, or noise and dust remediation issues. Licenses may also include monthly fees paid to you during construction, in cases of encroachment.
e.) Your engineer will do a pre-construction survey of your property, to document its condition prior to the start of construction. A pre-construction survey done by a certified structural engineer provides legal proof that the construction caused damage if it does occur, and that therefore the developer is liable for the cost of any required repairs to your property.
f.) Construction law is highly specialized; so a specialist is required. While under the law you cannot simply refuse to execute a license agreement (unless your attorney and engineer can show that the planned work is too dangerous), you need to be sure that the developer is properly insured. The attorney should review the developer’s actual liability insurance policy, to be sure that there are no unpermitted exclusions which would cause that policy to not cover damage to your property. While DOB is supposed to check a developer’s insurance, it only looks at the aggregate coverage on the face page of the policy, and not whether all the developer’s activities are covered under that policy. The developer’s certificate of insurance, even if you are listed as an additional insured, is insufficient proof that you are adequately protected. And insurance for developer activities such as “earth movement” (excavation) is routinely excluded from coverage under their policies – and is not available through homeowners’ insurance. A construction attorney reviewing a developer’s insurance policy will insist on the inclusion of coverage for all the developer’s activities.
- In Case of Emergency: Here are steps you can take in the event that demolition, excavation, underpinning, or encroachment begins without notice to you, or without a license agreement, or in case your building is shaking or being damaged, whether there is notice or not:
a.) In case of a life threatening emergency, evacuate the building and call 911.
b.) In case of encroachment without notice, call 311 and demand to speak to a Department of Buildings specialist.
c.) If your building is shaking, vibrating, or cracks develop: Call 311 Immediately, ask for a Department of Buildings specialist, state that your building is shaking, and be sure to use the words “excavation”, “property damage;” and if it’s the case, that “cracks have appeared in my walls and foundation”. Get a report number. This should prompt the DOB specialist to notify DOB to inspect the site. However, DOB may not report to the site immediately. If you think the vibration or cracks can jeopardize gas lines, call 911 and report that there may be a danger of explosion. Such a report should trigger an immediate visit by the FDNY; if they agree, stop work orders may be issued.
THIS ADVISORY IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. THE BUILDING CODE IS SUBJECT TO CHANGES AND AMENDMENTS, AND CONSTRUCTION CASELAW EVOLVES. ONLY A QUALIFIED CONSTRUCTION ATTORNEY CAN ADVISE YOU ON HOW TO PROCEED IN A SPECIFIC CASE.