Property managers, take heed! A recent court case highlights the power you have to protect your associations when a neighboring building owner does not cooperate in giving a license for protection on their property so that the association can perform its work . In this case, the court awarded a license fee and mandated typical insurance, but did not reimburse the unneighborly neighbor for any additional professional fees or costs and did not grant any other consideration for the license.
The Case of the Unneighborly Neighbor
The specifics of the case may vary, but the core situation is this: Building A requires repairs to its facade, and in order to do so, Building A has to install protection on Building B’s property to protect Building B. Here’s where the trouble begins.
Building A ideally seeks a license agreement with Building B, allowing the repairs to proceed with clear terms for access and consideration if the access is really intrusive. However, if Building B proves uncooperative and refuses such an agreement, Building A is forced to go to court to obtain a court-ordered license.
The Burden of Proof Lies with the Repairing Building A
It’s crucial to understand that the burden of proof lies with Building A, the entity seeking the license. In order to obtain the court-ordered license, Building A must demonstrate:
- Necessity of the Repairs: The court needs to be convinced that the repairs are essential and cannot be performed without protecting Building B’s property.
- Minimal Encroachment: Building A must show they have minimized the intrusion onto Building B’s property as much as possible.
- Security Measures: A plan outlining how Building B’s property will be protected during the repairs needs to be presented.
The Unforeseen Costs of Uncooperativeness
Building B’s refusal to cooperate may backfire. While they avoid granting explicit permission for the protection, they also forfeit the opportunity to negotiate a potentially favorable consideration package. It’s generally better for the parties to negotiate an out-of-court license than to leave it to a Judge to make a decision on the license terms and consideration. The court, in its decision, may not consider reimbursing Building B for its signifiant attorneys fees incurred regarding the matter. In the case, Building B was looking for up to a $10,000 reimbursement during negotiations which was dwarfed once litigation started. Building B walked away with no reimbursement by the Court.
The Takeaway: Cooperation is Key
This case serves as a cautionary tale for both parties involved. For property managers, it underscores the importance of pursuing clear agreements with neighboring property owners before embarking on facade repairs. For uncooperative neighbors, it demonstrates the potential financial burden of refusing a reasonable license agreement.
By fostering open communication and seeking mutually beneficial solutions, property managers can avoid the hassle and expense of litigation, ensuring a smoother and more cost-effective repair process for everyone involved. It is critical to bring in experienced counsel early on in the license process in order to facilitate negotiations and if necessary, bring the neighbor to Court. The Matter of Board of Managers of Ariel Condominium v. Broadway Metro Association, L.P. case gives, associations that require a license from their uncooperative neighbors, another tool in their arsenal for compelling the neighbor to be neighborly. Read the decision here.
