Dan Eschenasy PE. F.SEI
Principal Forensic Engineer
A new version of the New York City Building Code becomes effective this 7th November. Will it impact the recent years’ trend of increase in the number of cases related to Real Property Actions and Proceedings Law – §881 Access to adjoining property to make improvements or repairs (RPAPL 881)? In older areas of New York City (NYC), the building density is such that any new construction or even some alterations cannot be executed without accessing the adjoining property for inspection and installation of protective devices. As a result, the negotiations and cases are generally based on the sections prescribing the protection of adjoining property of NYC Building Code Chapter 33 Safeguards during Construction or Demolition. Even though the 2022 Building Code edition has only a limited number of changes to these Chapter 33 sections, this engineer proposes that the changes in subchapter 3306 Demolition related to temporary weather protection and building assessment may provide increased opportunities to negotiate licenses to access adjoining properties. Separately, it is most probable that additional sources for negotiations may be found in the new 1817.3 Evaluation of adjacent buildings for suitable methods of support.
Development of RPAPL 881 cases
The need to gain access to the adjoining property has been stated in NYC building codes since at least 1899. Such temporary access may be needed for condition inspections, repairs, or improvements to one’s property. Access may be also required to protect adjoining property during some construction activities. The enactment of RPAPL 881 in 1968 provided the developer a means to obtain court-ordered temporary access to inspect or install protective systems. In contrast to other court actions that take a long time, the RPAPL cases are adjudicated within months.
To appreciate the effect of the new code requirements that may trigger RPAPL 881 petitions, it is useful to observe the effect of the recent history of construction accidents and past changes in building regulations that led to the increased use of RPAPL 881. This short analysis is based on data published by the NYC Buildings Department and on the published court decisions issued in connection with RPAPL 881. While the DOB data is exhaustive, the court decisions constitute only a minor percentage of the negotiations tied to licenses of entry. Most of the stipulation agreements occur out of court and might also include issues not necessarily related to access. Nevertheless, the published cases can be considered a somewhat representative sample of all negotiations and can be used to identify trends.
On the books since 1968, the RPAPL 881 statute did not generate any meaningful number of actions until around 2008 although the erection of new buildings and the major alterations had occurred at a respectable pace since the 1990s. It is difficult to pinpoint the exact cause that triggered the increase in RPAPL actions. Most likely, it was triggered by owners seeking legal protection when a large number of construction incidents occurred when the real estate residential development moved into city areas originally developed before 1900. These old Brooklyn and Manhattan neighborhoods are dense with brick buildings extending lot line to lot line. The demolitions and especially the excavations along the adjoining masonry buildings produced a high level of damage, from wall cracks to building collapses. The graph Excavation Violations per Borough (Graph 1) puts in evidence the large number of excavation-related violations issued in the period 2005-09. Forensic evaluations by the author concluded that the major contributing cause of accidents was excavation executed without consideration for the condition of the adjoining lot line property (Eschenasy 2008; Eschenasy 2016).
The 2008 NYC Building Code included more specific provisions for “a preconstruction report summarizing the condition of the [adjacent] structure or property” as well as for monitoring adjoining structures. It also introduced section 3304.3.2 Notification of adjacent building owners before the start of excavation. The notification has to include a description of the proposed work. A similar notification was introduced for demolition. Although the notifications need to precede the activity by only ten days, they allow adjoining owners some opportunity to seek legal or engineering advice.
In a seemingly paradoxical way, even though the access has the purpose to provide safety (e.g. erecting a protective installation), owners resist. They learned that resisting access may provide an opportunity to include their lawyers and engineers in negotiations to ensure better protection from damages as well as compensation for inconveniences.
Construction activity decreased after the 2008 financial crisis; the citywide new building applications averaged 6,200 for the six years starting in 2007 but averaged only 1,775 for the period 2009-2014 (Graph 2). In contrast, the pace of RPAPL 881 actions just started an upward trend. From the enactment of RPAPL 881 in 1968 till 2006 less than 20 cases were decided. There were a total of 15 cases for the four years 2007-2010. About the same number of cases (17) were decided during the two years of 2015-16. The number doubled (38) during the 2020-21 period. The juxtaposition of the graphs New Building Applications (Graph 2) versus the number of RPAPL 881 cases decided in the recent periods (Graph 3) reveals that the number of cases has increased despite the downward trend of the new construction activity.
A more attentive analysis shows that although potentially triggered by the increased number of accidents, the increased use of the RPAPL 881 proceedings has not been a direct result of NYC Building Code provisions but was mainly driven by the way they were enforced. For instance, sections containing provisions for the protection of adjoining roofs had existed in the 1968 Building Code (that governed construction safety up to 2007). This mandated protection of adjoining roofs cannot be installed without permission to gain access, but negotiations for the necessary access had been scant. While in no year before 2014 the number of violations reached 100, they were close to or over 200 in each of the following years (Graph 4). The stop work orders associated with these violations are costly. Adjoining owners realized that they can force negotiations by resisting access for the installation of roof protection. Consequently, mirroring the increase in enforcement, roof protection became one of the most quoted causes for RPAPL 881 actions. Out of 38 decisions for the period, 2020-21 over half (18) mentioned roof protection but only 5 out of 13 decisions for the period 2015-16. (Graph 3)
It takes some time for a new code provision to be used as a ground for legal actions. For instance, the 2008 code introduced a requirement for a preconstruction survey in 3309.4 Excavation or filling operations affecting adjoining property but only in 2012 did RPAPL cases start to mention preconstruction surveys. The increased specificity of preconstruction survey requirements in the 2014 Code led to 15 actions (out of 38) during the 2020-21 period (Graph 3).
The 2022 NYC Building Code
The few significant new provisions related to adjoining construction of Chapter 33 of the 2022 code are in the 3306 Demolition section. The extensive new list of items that need to be included in the submittals is useful for any verification of compliance. Notable is the added 3306.9.16 Temporary weather protection (that is before the installation of permanent protection). The new 3306.5.5 Assessment of adjoining structure implies an actual professional understanding of any masonry or wood party walls involved. It is unlikely it can be properly performed without an inspector accessing the adjoining property.
The more substantive changes in the new code occur in Chapter 18 Soil and Foundations. Historically there had been numerous cases of adjoining property damage resulting from excavation and underpinning (Graph 4). The design and execution of these activities are the focus of extended provisions in the new code version.
The new 1817.2 Minimum requirements for undeveloped adjacent property clarifies that protection of adjoining property includes land and utilities as well.
Except for the case of CUCS HOUS. DEV. v. Aymes, 2020 N.Y where the judge found compelling necessity, the courts have denied petitions to use access under RPAPL 881 to install underpinnings as they may constitute a permanent encroachment (Broadway Enterprises, Inc. v. Lum). Various decisions indicate that to approve access under RPAPL 881, the courts expect specific details as to the work necessary to make improvements or repairs. The petitions for access may be denied when there exist alternative methods of construction.
The new 1817.3 Evaluation of adjacent buildings for suitable method of support implies that a decision on the type of support needs to be based on engineering observations. The engineer shall submit an evaluation report to the department assessing the condition of the existing building and the subsurface conditions of the construction site and adjacent property. The report shall also identify acceptable method(s) of support, including underpinning or alternate methods of support.
The 2022 Building Code is clear that an assessment needs to precede a final decision. A report evaluating various features of the existing adjoining building needs to be produced at the time of the foundation submittal. The text of the 1817.3.5 Evaluation report indicates that such a report may present several acceptable methods of support. The final selection of the support system belongs to the engineer designing the method of support, who is also authorized to deviate from the original proposal that was submitted together with the foundation plans. A new evaluation report may supersede the original one.
The enumeration of methods of support is almost exhaustive. 1817.4.2 Alternate methods of support. In lieu of underpinning, an excavation support system and/or lateral bracing designed to restrict the movements of the adjacent buildings within the established threshold levels may be installed. Such excavation support systems may consist of secant piles, slurry walls, tangent pile walls, jet grouting, pressed-in continuous sheeting, or similar engineered system. Except underpinning, probably the only other method of support that may involve encroaching on the adjoining property is jet grouting. Each alternate method of support comes associated with some risk of affecting the adjoining property. For instance for secant piles, slurry walls, or tangent pile walls the code specifies in 1810.5.5 that Deep foundations shall be installed with adequate provision for the protection of adjacent buildings and property.
In the opinion of this engineer, the provision of 1817.4 indicating that such underpinning or alternate method of support shall be designed as a permanent structural element does not necessarily imply that all alternate methods are permanent structures but only that the standard of care for design shall be same as for a permanent structure. RPAPL 881 authorizes a license “to make improvements or repairs”. As long as the permanent support is an improvement that does not encroach on the adjoining property, the courts should not reject petitions for access to perform preliminary condition assessments.
The courts will probably consider 1817.3 Evaluation of adjacent buildings for suitable method of support sufficient justification to allow access for evaluation prior to the selection of the method of support.
Several new 2022 Building Code provisions may provide an additional basis for RPAPL 881 actions. The most important ones are those requiring access for the condition assessment necessary to determine the method of support of adjoining buildings during excavation. Their enforcement by DOB will be essential. It might take over one year to see their effect in negotiations or court rulings. Independent of these provisions, as awareness of this RPAPL 881 process increases more and more owners might be seeking professional advice for protection. The number of negotiations and RPAPL 881 actions should continue to increase. Fluctuations in construction activities are not likely to strongly affect the upward trend.
Eschenasy, D. (2008). Design and Construction for Dense Urban Areas—Structural Engineering Challenges in NYC. In Structures Congress 2008: Crossing Borders (pp. 1-10).
Eschenasy, D. (2016). Erecting new buildings in New York City’s old neighborhoods. Proceedings of the Institution of Civil Engineers-Forensic Engineering, 170(1), 24-32.
IN THE MATTER OF BROADWAY ENTERPRISES, INC. v. Lum, 16 A.D.3d 413, 790 N.Y.S.2d 402 (App. Div. 2005).
CUCS HOUS. DEV. v. Aymes, 2020 N.Y. Slip Op 33477 (Sup. Ct. 2020).