An unwelcome surprise awaited many co-op and condominium boards beginning in 2017, which will continue to surprise boards through 2018 and thereafter, when five-year inspections under the New York City Department of Buildings (DOB) Façade Inspection Safety Program (commonly known as Local Law 11/98) (LL11) are required to be performed. Boards learned (or will learn) that the DOB is enforcing a requirement that sets a strict 9th Cycle deadline by which balcony enclosures must be legalized or removed. Failing to do so could result in the building's inability to timely file a “Safe” or “SWARMP” LL11 inspection report with DOB.

This column discusses the dilemmas posed by this DOB policy, how we got there, and makes recommendations to boards, managers, owners, and to the DOB as to how to best address such dilemmas in an equitable and practical manner.

DOB Balcony Enclosure Regulation

On June 17, 1976, the DOB issued a memorandum regarding what was becoming an increasingly common practice among apartment owners—to enclose balconies with open screening, metal or glass panels. (Memo of June 17, 1976—Enclosed Balconies) (the 1976 DOB Memorandum). The Memorandum addressed two significant aspects of such enclosures. First, for readily removable enclosures (including those with solid panels), building notices were required to be filed with DOB. Second, such enclosures would not be counted as Floor Area for zoning purposes. The Memorandum emphasized that such an enclosed balcony was not to be used as a “room,” and could not contain heating, ventilation, or air-conditioning systems.

During the subsequent decades, apartment owners continued to enclose their balconies, frequently turning them into “rooms” which were incorporated into their apartments. Often, this work was performed without a DOB permit and without board approval.

The 2011 Amendment

On Oct. 2, 2011, the DOB effectively amended its 1976 Memorandum (1 RCNY §101-14) (the 2011 Amendment). Enclosures less than 40 feet above ground and which only screened-in a balcony could continue to be installed without a DOB permit. However, enclosures with windows and solid walls would require DOB permits.