Scott E. Mollen

Condominiums—RPAPL §881 Applies to Condominiums—Case of First Impression—Neighbors Entitled to §881 Temporary License to Accommodate Alterations

 Petitioners, owners of a fifth floor condominium unit, commenced a proceeding against their condominium board (board), a managing agent (manager) and the owners of the condominium unit (neighbors) located below their unit (4^th fl. unit). They alleged that the respondents failed “to comply with the declarations, by-laws, rules, regulations and decisions adopted by the…(condominium)…by prohibiting, interfering with, and denying them access to (the 4^th floor unit), to perform work to the general common elements…” Alternatively, the petitioners sought a “limited license to enter (the 4^th fl. unit).”

The petitioners sought access to the neighbors' unit to access “the common elements of the building to perform necessary plumbing work (work) pursuant to ongoing renovations to (petitioners' unit).” The petition alleged that the requested access was necessary to “'achieve the proper pitch for the waste line of each toilet service (in petitioners' unit) and the installation of a tub trap…' and 'since the building is a concrete structure, the only access point to sections of the subfloor…is through the ceiling of (the 4^th fl. unit).”

The petitioners asserted that the board had approved their renovation plans, accepted their general contractor's insurance certifications and had authorized commencement of the renovations of the petitioners' unit. Additionally, the manager had filed all Department of Building (DOB) alteration applications, and the DOB had approved the renovation plans. The petition also stated that the neighbors had “refused access,” notwithstanding the petitioners' “assurances…that proper precautions would be taken to minimize disruption and inconvenience and to repair any damage to (the 4^th fl. unit) caused by the work.”

The petitioners had asked that the board require that the neighbors provide access, but the manager had advised the petitioners that the board would not intervene in disputes between unit owners.

The petitioners further alleged that the “small inconvenience by the temporary and limited access to (the 4^th fl. unit) is greatly outweighed by the substantial hardship to the petitioners if access if denied.” The petitioners cited the condominium's declaration and by-laws, which they claimed granted unit owners a right of access to other units, when authorized by the board, for the purpose, inter alia, of “performing installations, alterations, or repairs.”

The petition requested an injunction requiring the respondents to grant the petitioners access to the 4^th fl. unit to perform the work, and barring them from interfering with such work, pursuant to the condominium Documents and Condominium Act, RPL §339-j; or alternatively, a license granting the petitioners access to the 4^th fl. unit, pursuant to RPAPL §881; and breach of fiduciary duty against the board and the manager.

The board and the manager opposed the order to show cause and cross-moved to dismiss the petition, on the grounds that it was the neighbors who had denied petitioners' entry or access to the 4^th floor unit and petitioners had not alleged that the board or the manager prevented the petitioners from accessing the common elements.

They also argued that the condominium's declaration and by-laws confirmed that “to the extent petitioners have any right to access a unit, it runs personal to the board—not to a unit owner.” They contended that the board's right of access is limited “to inspections; removing violations and correcting conditions; and performing installations, alterations or repairs to mechanical or electrical services or other common elements.”

They further argued that neither the by-laws nor the declaration “'permit nor authorize the board or (manager) to access any condominium unit…simply to allow another unit owner…to access common elements situated contiguous to that other unit' and there is no provision 'by which the board and (manager) are authorized or permitted to compel a unit owner to provide access to their neighbor….'” They additionally argued that RPAPL §881 is inapplicable since such statute relates to an application for a license that may be “initiated by an owner against an adjoining owner when that adjoining owner has refused permission to enter its property….”

The neighbors opposed the order to show cause and cross-moved to dismiss, based on an attorney's affirmation, which asserted, inter alia, that under the declaration and by-laws, the petitioners lack standing to sue because the board has “'exclusive authority to enforce the by-laws, regulations and decisions adopted…against a non-compliant unit owner,' including the 'authority to enter or demand access to a unit…” The neighbors further argued, “without citing any case law,” that RPAPL §881 'is meant to address adjoining land owners, not adjoining units within the same condominium.”

The neighbors also argued that the “'petitioners have not demonstrated the necessity of their access,' since petitioners would like to create a 'vanity bathroom' in their unit which is a luxury…” and that such access “'is not simply an inconvenience, but it is extreme'” because the neighbors “have rented their unit to a family with an infant.”

The petitioners countered that the neighbors' opposition was not supported by an affidavit of a person with actual knowledge and the neighbors “grossly exaggerated” the work that would be done. Petitioners emphasized that the work would be “solely limited to the bathroom” during “normal work hours for an estimated period of 2-3 days, and there is no need to vacate the unit.” The petitioners also asserted that any inconvenience to the 4^th fl. unit is “obviated by the fact that the current tenants' lease expires at the end of April 2019 and they are not renewing their lease.”

The court explained that this case involved an “issue of first impression regarding whether RPAPL 881 is applicable in the context of adjoining condominium units.” It held that predicated upon the “plain language of the statute, RPAPL 881 applies to any 'real property' which includes condominium units.”

RPAPL 881 provides:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

The court stated that RPAPL 881 proceedings are addressed to “sound discretion of the court,” which “must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted….” Here, the petitioners met the “statutory prerequisites of showing necessity and that neither the period of time requested, nor the size of the area involved appears unreasonable.”

The court noted that the neighbors' tenants have already vacated the 4^th fl. unit and such unit is now vacant. Thus, granting the petitioners a limited license to access and perform the subject work “would not inconvenience any existing tenants.” Moreover, RPAPL 881 licenses have been granted “even in situations where the proposed work is intrusive….”

The court emphasized that RPAPL 881 “affords the adjoining property owners adequate legal rights and remedies by subjecting the licensee to full liability 'for actual damages occurring as a result of the entry.'” Thus, the neighbors would have a cause of action for actual damages against such petitioners and “to insure payment of such damages, the court will require the maintenance of adequate insurance by petitioners.” The court also noted that the neighbors “will receive compensation for petitioners' utilization of (unit) during the time period of the license in a fair and equitable sum….”

Thus, the court granted the petitioners a temporary license to access and perform the work in the bathroom of the 4^th fl. unit on the conditions that the petitioners' plumber and contractor perform the work for a maximum of 10 consecutive days on dates and times that are mutually agreed upon by the parties.

Additionally, the court directed that the petitioners pay the neighbors a license fee of $100.00 per day until the work is completed. The petitioners were also directed to maintain a comprehensive liability insurance policy of not less than $1,000,000, which names the neighbors as “additional insureds.” The petitioners were required to provide proof of the required insurance prior to commencement of the work.

The court further stated that the petitioners would be liable to the neighbors for any damages that may be incurred as a result of the license and all damaged property shall be repaired at the sole cost of the petitioners. Moreover, the petitioners must indemnify the neighbors for any personal injury or property damage caused by the work and upon completion of the work, the petitioners must restore the 4^th floor unit to its “original, broom clean condition, and all materials used in construction and any resultant debris shall be removed from the license area….”

Voron v. Bd. of Mngrs, Newswalk Condo, Supreme Court, Kings Co., Case No. 504374/19, decided April 26, 2019, Rothenberg, J.

Landlord-Tenant—Admin. Code §27-2005(d)—“Harassment” Inapplicable to Neighbor Making Loud Noises—Tenant Claimed Landlord Could Rent Apartment for 4x the Current Rent if Tenant Moved—Generally, a Landlord's Failure To Evict a Neighbor Does Not Constitute Harassment

A petitioner tenant (petitioner) commenced a proceeding against his landlord, claiming that the landlord “harassed him in violation of N.Y.C. Admin. Code §27-2005(d)” (§27-2005(d)). The landlord moved to dismiss for failure to state a cause of action and pursuant to CPLR § 3211(a)(1), a “defense based upon documentary evidence.”

The petitioner, a senior citizen, alleged that the leases in the building require that tenants cover at least 80 percent of their rooms with carpet and padding and that he was entitled to a “quiet” apartment. He claimed that his landlord ignored several notifications that noise was emanating from the petitioner's neighbor's apartment (neighbor). The petitioner asserted that the landlord refused to remedy the problem because the petitioner is a regulated tenant and almost all other apartments in the building are market rate rental apartments. He alleged that apartments similar to his apartment rent for four times the amount of the petitioner's rent. The petitioner acknowledged that the neighbor's apartment is on the same floor as the petitioner's apartment.

The court explained that the “prohibition against harassment applies to an 'owner'” (§27-2005(d)) and that “owner” means a “lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling….” N.Y.C. Admin. Code §27- 2004(a)(45). Moreover, the purpose underlying the regulations are to “impose liability on any entity or person with some say in the operation of a building.”

The court found that the neighbor was not an “owner” and, therefore, the proscription against harassment embodied an §27-2005(d) is inapplicable to the petitioner's neighbor.

As to the petitioner's allegation that the landlord had told the tenant that he could move if his neighbor disturbed him, the court found that such statement did not “rise to the level of harassment as defined by the statute, i.e., a 'significant' act that 'substantially' interferes with petitioner's comfort, repose, peace, or quiet.”

The court noted that the petitioner was upset about the landlord's failure to take action against the noisy neighbor and failure to enforce the alleged house rule requiring installation of carpeting. It observed that installation of carpeting may protect a downstairs neighbor from noise, but “not a next-door neighbor.” Moreover, enforcement of a rule, “only has meaning if respondents would have a remedy, which could only be a nuisance holdover proceeding against petitioner's neighbor.”

The court further acknowledged that an owner's “omission” may constitute harassment. However, “the proposition that a landlord's forbearance in commencing an eviction proceeding can constitute 'harassment' is problematic.” Keeping tenants in their homes is, “a goal of §27-2005(d). It reasoned that “[e]xposing a landlord to liability for harassment for refraining from commencing an eviction proceeding would incentivize landlords, on the margin at least, to commence more eviction proceedings than otherwise, which the court finds would frustrate an intent of the statute.”

Additionally, the statutory language defining harassment “demonstrates that harassment entails some level of purpose on a landlord's behalf.” A claim for breach of the warranty of habitability “lies against the landlord with no showing that a landlord acted in bad faith or contributed to an impaired condition.” With respect to the warranty of habitability, a landlord is liable “even if an act of a third party caused the breach…..” However, in contrast with a landlord's liability for breach of the warranty of habitability, “the statute's definition of harassment, …does not contemplate liability for a similarly passive landlord.” Thus, the court granted the landlord's motion to dismiss the proceeding, with prejudice, but without prejudice to claims other than harassment that the petitioner may have against an “appropriate party in the appropriate form” and “without prejudice in any defenses that party may have.”

Finally, the court stated that if a landlord “deliberately installed into occupancy a person in the building to harass tenants, …that landlord would be in violation of…§27-2005(d).” Here, the petitioner had not alleged any “collusion” between the landlord and the neighbor.

Comment: As the court noted, if a landlord had installed drug dealers and thugs with an intent that those people would harass tenants, §27-2005(d) could be invoked.

Noisy neighbors present difficult challenges. In these situations, noise is often sporadic and it may be difficult to acquire objective evidence that the noise was so loud that it constituted a private nuisance or a basis for a breach of warranty of habitability claim. Tenants may retain sound experts to record and measure noise emanating from a neighboring apartment. However, that involves expense, with no assurance of success. Expert testing may be helpful, but is not required. Some tenants will record the noise. Tenants who live next to noisy neighbors should try to keep records to document the days, times and nature of the incidents. Of course, the preferred solution is a respectful request to the offending neighbor to contain the noise.

Responsible landlords and managers will try to intercede and resolve the problem. They know that litigation can be expensive and if a breach of warranty claim is sustained, a court may award a rent abatement and legal fees. Additionally, even when a landlord prevails and is entitled to recover legal fees, courts will only award “reasonable” legal fees. Since a party's actual legal fees may exceed a court's view of reasonable legal fees, a prevailing party may incur legal fees that are higher than those awarded by a court and they will be out-of-pocket for the difference.

Robinson v. Taube, Civil Court, New York Co., Case No. 6050/2019, decided May 6, 2019, Stoller, J.

Scott E. Mollen is a partner at Herrick, Feinstein.