As every New York City real estate developer knows, obtaining access to neighboring properties to install legally mandated construction safety protections required by the New York City Department of Buildings (the “DOB“) can be a convoluted and expensive process. Though this may seem like a minor issue in the context of a real estate development project, promptly (and correctly) negotiating access with neighboring property owners can make the difference between a successful project and a losing one.
This post on New York City construction license agreements and New York Real Property and Proceedings Law (“RPAPL“) § 881 petitions will discuss the overview of License Agreements a/k/a Construction Access Agreements. More specifically, what are typical provisions and content that are generally contained within a standard license agreement. As with any agreement, most of the provisions are negotiated between counsel for each party and to a varying degree are made more or less stringent depending on the relation of the parties and the scope of the project and protections on a neighboring property.
Negotiating a License Agreement should be one of the first things a developer does once it determines they will be performing either demolition or construction work on their property. License agreements with many neighbors can be challenging as some demand onerous or impracticable terms and seek to delay the process to gain leverage over the developer.
The list below contains the provisions typically associated with the scope of the project, the protections and the access necessary to finalize a License Agreement. The list below is not exclusive and not all of the below will be in the final negotiated agreement for any given project, however, the below topics and provisions are found throughout the majority of License Agreements in New York City.
First and foremost, the License Agreement should contain the location and scope of the project, the owners of each property at issue, and given a detailed accounting of where each property is on a New York City Tax Map to avoid any confusion. For example, such provisions may say that the developer is demolishing the existing building located at the project site (the “Site”) and building a new six-story building at the Site.
Next, the License Agreement will typically provide for a quick list of what protections are necessary to be installed on the adjacent neighbor’s property (the “Adjacent Premises”) throughout the project and may be broken down into what is necessary for each phase (i.e., demolition phase protections). Often following this information will be what access is necessary at the Adjacent Premises to install said protections (i.e., will need to access the roof to install roof protections).
Typically, the License Agreement will provide for access to the Adjacent Premises for the developer to conduct a preconstruction survey at the Adjacent Premises in order to establish a baseline of the conditions of the Adjacent Premises prior to the construction project at the Site. These inspections often can determine if additional protections are necessary (i.e., cracks are found in the wall of the basement of the Adjacent Premises).
Next, depending on the scope of the project, the License Agreement will provide for access to the Adjacent Premises to install monitoring equipment on the Adjacent Premises during the demolition and/or foundation phases of the Project.
The following provisions will detail the temporary protections that are to be installed on the Adjacent Premises throughout the project, which often includes, but is not limited to, roof protections, a construction fence, overhead protections in a rear, side or front yard or over residential balconies, and depending on the alignment of the properties a sidewalk shed on the public sidewalk (although a license for access for this not necessary for a developer to obtain in most circumstances and will be explained in detail in another post).
Depending on the alignment of the properties at issue, your License Agreement may contain a license to access the airspace over the Adjacent Premises to install suspended scaffolding or pipe scaffolding on top of the overhead protections.
Though the License Agreement is typically for temporary protections, a developer may need a license to install permanent protections on the Adjacent Premises, which may include weatherproofing on exposed foundations or flashing between the buildings.
Stay tuned for our next post where we will dive into other sections of a typical License Agreement for New York City construction projects.
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