Court-Imposed Access for “Underpinning” Next Door

Underpinning - extension of the foundation of one's property

CUCS Housing Development Fund Corporation  and several related entities sued under RPAPL § 881  for Court-imposed  access, for the  purpose of underpinning  a neighboring property on West 12th Street owned by  Clifford S. Aymes.  Underpinning is  the extension of the foundation of one property to below the foundation of a neighboring parcel.

CUCS was trying to begin a construction project to provide New York City’s homeless population with affordable housing. Aymes owned the one-story, unoccupied building adjoining  the project.

The New York City Building Code  required CUCS take careful measures to protect public safety and to prevent damages to Aymes’ property during the building’s construction.

Where underpinning  is required, the Code  provides:

“Whenever underpinning is required to preserve and protect an adjacent property from construction, demolition or excavation work, the person who causes (the construction or excavation) such work shall, at his or her own expense, underpin the adjacent building provided such person is afforded a license …to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the construction, demolition, or excavation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of the adjoining property, who shall be afforded a similar license with respect to the property where the construction, demolition, or excavation is to be performed”

The Code also provides:

“The responsibility of affording any license to enter adjoining property shall rest upon the owner of the adjoining property involved . . . Nothing in this chapter shall be construed to prohibit the owner of the property undertaking construction or demolition work from petitioning for a special proceeding pursuant to § 881 of the Real Property Actions and Proceedings Law.”

CUCS claimed claim that, to continue with the housing project, fixtures had to be installed on  the Aymes property’ that included underpinning, a sidewalk bridge, scaffolding, health and vibration monitoring, shoring, and roof protection. Aymes refused to give CUCS access to his property.

After months of unsuccessful negotiations and  repeated attempts to convince Aymes to grant access to his property, CUCS filed for  RPAPL § 881 relief. Aymes then consented to non-permanent encroachments, such as the placement of scaffolding and nets, but continued to refuse access for underpinning.

The Court held a hearing to determine access rights for the underpinning pursuant to RPAPL § 881. The Court heard testimony from Doug James, COO of CUCS, Bruno Frustaci, COO of Bruno Frustaci Contracting, contractor for CUCS and from Aymes. Frustaci testified that no reasonable alternatives to the underpinning existed.

The footing for the new building would abut the property line. The bottom of footings would be approximately 14 feet below grade. And the adjacent footings on the Aymes property were thought  to be  approximately eight nine below grade. Frutasci testified that the neighboring footing would have to extended down.

Frutasci also testified that CUCS had to ensure the footing of two properties were same, because, if not, Aymes building would collapse. Frustaci also said that the underpinning would cause no damage to Aymes’s property. And that CUCS went through a two-year approval process with the Department of Buildings and City Planning.

There was additional testimony regarding the ongoing homelessness crisis in New York City.

Aymes opposed the underpinning. He submitted a letter from James Cohen, PE, an engineer who stated that sheeting and bracing were viable alternatives to underpinning.

CUCS insisted on underpinning, as opposed to other alternatives, such as sheet piling. Frustaci testified that sheeting is actually more intrusive, and an unrealistic and dangerous option, as it would cause excess vibrations to Aymes’s already unstable property.

After the initial hearing, the Court granted an interim order on consent for the protective work, including, roof protection, vibration and optical monitoring, and shed work to commence.

At a subsequent hearing, both sides provided additional expert testimony and statements under oath.

The court then determined whether to grant CUCS’ request for a license to access Aymes’s property for an underpinning.

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 dator 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.”

In determining whether or not to grant such a license, generally apply a standard of reasonableness”. RPAPL § 881 requires the balancing of conflicting interests: Courts are required to balance the interests of the parties and should issue a license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused. Where a license pursuant to RPAPL § 881 is sought, the license can be compelled even though no agreement is reached, and in that situation, the terms of the license are set in the discretion of the court.

The factors is to considered on such an application are the nature and extent of the requested access, the duration of the access, the protections to the adjoining property that are needed, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage and inconvenience resulting from the intrusion.

Because an underpinning is a permanent encroachment, an applicant for Court-imposed license must demonstrate that the underpinning is virtually “unavoidable”. In this case, the Court found that CUCS demonstrated that the underpinning was “virtually unavoidable. The suggested options were not actual options. The nature of the building caused a 3-inch space between the two building and CUCS therefore had no alternative to underpinning. And, an alternative to underpinning would require CUCS to reconfigure the entire project at great expense and would result in the lose of important space in the basement intended for a social services office that was  put in the basement to maximize the amount of residential affordable housing above ground.

The Court noted that it was important to house the social services office on site to afford a vulnerable population direct access to the services they so needed. And CUCS established that the underpinnings were necessary to keep the property from collapsing. What’s more, DOB and other agencies had conducted a two-year review of the project plans and approved the plan with the proposed underpinning.

The Court found that the case law did not preclude a license for a permanent encroachment. Such an interpretation would be contrary  to the language of RPAPL § 881 that allows for an encroachment “as justice requires”. The Court also deferred to administrative agencies’ interpretation of the Code and the RPAPL. Here, the DOB’s regulations, when read together, clearly anticipated  legal proceeding under RPAPL § 881 to obtain a license for an underpinning.

The Court found that CUCS had demonstrated the lack of reasonable and practical alternatives, the necessity of the underpinning, and the specific plans and procedures filed and approved by the NYC Department of Buildings.

Noting that: In recent years, homelessness in NYC have reached staggering highs. In December 2018, there were 63,498 homeless people, including 15,485 homeless families with 22,899 homeless children, sleeping each night in NYC’s municipal shelter system. Families make up three-quarters of the homeless shelter population and currently account for the largest number of people in NYC’s municipal shelters.

Many of these families have school aged children. As a result, the number of students in temporary housing rose to 114,659 as of 2018; a dramatic increase from 69,244 children that were homeless in 2010. One out of every ten students in NYC  sleeps in a homeless shelter or in the homes of relatives. The number of homeless children continued to swell. And the City had yet to see a significant increase in public or private dollars spent to support these students.

Homeless shelters in Manhattan are overcrowded, overpopulated, and under sourced. The homeless have nowhere to go to receive services and aid. Many of the City’s homeless have jobs and simply cannot afford to pay rent. Others are families with small children. Research shows that the primary cause of homelessness, particularly among families, is lack of affordable housing. The lack of affordable housing is a persistent and troubling epidemic that has reached a crisis point. A scarcity of resources has caused people to live outside on the streets, in the subway system, and in other public spaces.

The Court stated that Aymes’ property was vacant, unused and empty without utilities including electricity, or a secure front entrance to keep trespassers and vandals out.

The Court compared Aymes lack of basis for his objection to underpinning his one-story building to CUCS’ more compelling reasons for underpinning, including that there were no feasible alternatives to underpinning, the loss of social services space if underpinning were not permitted, testimony at both hearings that established the need for underpinning, and the affordable housing that  the homeless shelter system stands to gain from the project. The Court found, after a hearing, that CUCS demonstrated that access to perform the underpinning was both just and appropriate.

The Court also concluded that, while RPAPL § 881 may compel Aymes to grant CUCS’ access to his property, justice required that Aymes not be compelled to incur costs to protect his property from such access. Courts in the past had awarded licensing fees as a condition of granting a license pursuant to RPAPL § 881. The granting of the license in this case warranted the award of contemporaneous licensing fees because Aymes did not invite intrusion on his property. And, where, as was the case here, access is compelled, Aymes should not have to bear any resulting costs.

The Court granted CUCS’ request for a license to enter Aymes’s property for the purposes of installing protective works, including underpinning–and also granted Aymes’ request for an award of reasonable license fees  in an amount to be determined at a hearing.

The Court also granted Aymes’ motion for CUCS to cover all expenses and costs relating to the installation, maintenance or removal of all temporary encroachments, including the on-site supervision of respondent’s licensed professional engineer.


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