By Mike Lopez, R.A., AIA, Director, Rimkus
In a city as vast and densely populated as New York City, performing exterior work is likely to impact an adjacent or neighboring building. It is an inevitability for most buildings.
Typical view of adjacent building roof protection installed. - PHOTO: RIMKUS
Annoyances like roof protection, scaffolding, noise, dust, debris, intruders, time, and money are a handful of the issues that come up when talking about performing work on or over an adjacent building. In the past several years, many design professionals have had to take the time to fully understand the effort dedicated to obtaining access to an adjacent property and incorporate that process into the overall schedule. What this ultimately means is that even if you have filed and awarded a project, there is still the unknown factor of how long it will take to gain access to an adjacent property.
"...Nothing in this chapter [Chapter 33: Section 3309.2] 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.”
For those who have not dealt with this, accessing a neighboring property is typically completed through an access agreement, required by the 2022 New York City Building Code. Yep, that’s right, the 2022 New York Building Code requires that notification and an agreement be in place to access an adjacent property. The access agreement is made between two or more parties and becomes the legal document to allow/grant access onto another’s property for a specified reason. In most cases, this is for a construction or demolition project. Here is an excerpt from the building code:
Chapter 33: Section 3309 Protection of adjoining property states:
“Where a construction or demolition project will require access to adjoining property in accordance with this section, written notification shall be provided to the adjoining property owner at least 60 calendar days prior to the commencement of work. Such notification shall describe the nature of work, estimated schedule and duration, details of inspections or monitoring to be performed on the adjoining property, protection to be installed on the adjoining property, and contact information for the project. Where no response is received, a second written notification shall be made no more than 45 calendar days, and not less than 30 calendar days, prior to the commencement of work.”
Even with this code-prescribed requirement that speaks to timing limitations, our team has seen and had first-hand experience with access agreements taking several months and even over a year to obtain. It begs the questions:
What factors are causing these delays?
How are these agreements going to affect a project’s completion date?
What can we, as design professionals, do to mitigate these issues?
Diagram depicting a typical multistory building with neighboring buildings and areas in need of protection/requiring access. - PHOTO: RIMKUS
After several recent projects, brainstorming, and discussions with trusted industry professionals, we came up with the following list to help navigate this process. It may go without saying that each project should be reviewed, and all legal advice should be obtained from the appropriate legal parties.
1. Establish a relationship with the neighbor’s owner or managing agent.
As a team, efforts to avoid these delays have included broaching the conversation of access well before a design is issued for bid or even filed. Months and even years before a project, it can be helpful to simply know the points of contact and the players involved to obtain a future access agreement. Our team has found that while this may start the agreement process, it ultimately comes to a stop requiring more detailed and regulatory agency approved documents. This includes Department of Buildings (DOB)-approved plans and, at times, a DOB-approved Site Safety Plan, that would not be obtained until after the initial project filing’s approval.
In a recent project of Rimkus, opening the conversation with neighboring properties and developing the agreement had taken place years before this project. The agreement spoke to the requirements for protection and access, as many previous projects for this building required repeated access over a neighboring building. This effort, in theory, mitigates the inevitable delay in obtaining access. At the time of this article, this specific agreement was still in legal review.
2. The direct route may not be the only way to accomplish the project.
In some projects, owners and contractors have had to think outside the box to phase projects creatively and safely to progress the work and avoid a complete and utter standstill. As an example, a recent project included performing work at a particular elevation instead of all elevations at the same time, while the remaining access agreement was being finalized. Another example utilized supported scaffolding in lieu of suspended scaffolding as a means of access. This avoided the need to store equipment on a neighbor’s terrace. This change in access was not the most ideal for the contractor but it allowed for the project to continue rather than wait on approval of the access agreement.
From the perspective of an owner, the change in access or phasing can be frustrating, as it adds to the cost of the project; however, at the same time, it helps a project to progress forward and can minimize the legal fees that would be incurred during negotiation of the access agreement.
3. Set a firm timeline.
In some projects, obtaining an access agreement can be anywhere from a few months to over a year in the making. This, coupled with extensive legal fees and monetary demands, can escalate the project cost exponentially.
It can be immensely helpful to set an internal timeline for when to follow up and when to establish a date to start legal action, should no response or agreement be obtained. Sometimes being overly nice equates to a slip in the timeline for reaching an agreement. This delay, along with others, can create a compounding effect to the point that may result in a delay of the entire project into the following year.
4. Do not be afraid of legal action.
While it may seem like a last resort, beginning the 881 Action, which is the legal proceeding to obtain access in New York City, starts the clock and informs the neighbor that the situation is serious. Discussions with the building’s legal counsel are key to getting this started.
5. Give reciprocal rights.
As the golden rule goes, “treat others as one would want to be treated.” Our experience shows that new access agreements may be delayed or ignored due to previous negative interactions among neighboring building owners in processing such agreements.
Though there is no perfect formula for obtaining access from a neighbor, it is ultimately necessary in order to perform exterior repairs and maintain safe buildings.
Mike Lopez is the Director of Technical Services for Architectural Engineering at Rimkus. He has been working within the building envelope industry for nearly 15 years and has extensive building envelope consulting and construction administration experience, specializing in exterior restoration, waterproofing, roofing, and leak remediation. Mr. Lopez is a Registered Architect in the states of New York, Texas, Louisiana, Rhode Island and Florida. He is also a Level 1 Rope Access Technician and a QEWI.
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