My family owns a tenement/brownstone in Manhattan. About 10 years ago, the building next door to ours decided to construct a penthouse on their property. In order to build the structure to code, they extended the chimney on our property vertically, so that the chimney opening was above their newly constructed penthouse. They did this without our permission. I am very concerned that the... [more]
My family owns a tenement/brownstone in Manhattan. About 10 years ago, the building next door to ours decided to construct a penthouse on their property. In order to build the structure to code, they extended the chimney on our property vertically, so that the chimney opening was above their newly constructed penthouse. They did this without our permission. I am very concerned that the construction was done poorly. It looks unsafe. It is also quite unattractive.
I was not in charge of running my family's property at the time, but I would have certainly sued the building next door if I was. I recently spoke to the management of the firm in charge of the building and they claim that they had a right to extend the chimney because the building code required it. I find this hard to believe. While the code undoubtedly requires them to extend the chimney in order to build their penthouse to code, this does not give them the right to. They need the permission of the property owner of the chimney.
Who is correct here? Any additional advice? Any recommendation for a lawyer that specializes in nyc construction issues? I don't think this is a big money suit. At the same time, the building next door has benefited for 10 years from the constructed penthouse (which they rent out) as well as the increase in value to their building. I believe there could be an unjust enrichment claim here.
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Response by nyc_sport
about 13 years ago
Posts: 814
Member since: Jan 2009
They do need to ask your consent, but if consent is not given the responsibility reverts to you to bring the chimney into compliance. But they also have the obligation to maintain the addition. Not sure that lawsuit has any legs. Making them fix it now might.
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Response by huntersburg
about 13 years ago
Posts: 11329
Member since: Nov 2010
>They do need to ask your consent, but if consent is not given the responsibility reverts to you to bring the chimney into compliance.
Wow, that sounded pretty stupid.
Nintzk, go find a lawyer, or else you might get more moronic jumbled responses like nycsport's.
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Response by front_porch
about 13 years ago
Posts: 5321
Member since: Mar 2008
letting this go for ten years may have effectively granted rights (in jargon, an easement) to your neighbor's penthouse. Call a lawyer.
ali r.
DG Neary Realty
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Response by Snuffles
about 13 years ago
Posts: 173
Member since: Apr 2010
I think you better hurry up and consult a lawyer else a statute of limitations might kick in and they end up with an easement by default. Could be like one of those 'squatters' thing where if you do nothing for certain amount of years they get to keep it.
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Response by yikes
about 13 years ago
Posts: 1016
Member since: Mar 2012
does anyone know if there are in fact statutes of limitation which would apply here?
case in point: a friends brownstone where, years ago, neighbor built an extension/deck which clearly extends about a foot into friends lot, such that friend cant now build extension/deck completely on his property without demo'ing that built by neighbor.
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Response by front_porch
about 13 years ago
Posts: 5321
Member since: Mar 2008
Yikes, if we are indeed dealing with an easement "by prescription," the length of time is going to vary by locality, which is another reason for the OP to consult a lawyer... but in NYC ten years might be enough.
ali
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Response by uptown_joe
about 13 years ago
Posts: 293
Member since: Dec 2011
The building code section is called Adjoining Chimneys and is written in pretty easily understandable language. Look it up...
On a practical level - what do you want out of this? A better-built and better-looking chimney? Cash?
Realistically, the chimney is not going back to its previous height. It could undergo some work -- by them at your request, by you with their cash, or by you with your own cash. (The building code specifies "by them," unless you refused access, in which case you have to do it yourself or accept liability for any problems caused by the resulting non-code-compliant chimney.) I doubt anyone will reward your lawsuit with anything beyond the performance of what was required at the time of the alteration but the adjacent building failed to deliver (then or since). You're not going to get a payoff for 'trespassing' (10 years ago?) or a share of the penthouse rent.
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Response by truthskr10
about 13 years ago
Posts: 4088
Member since: Jul 2009
The 2 sections that apply to your situation
801.1.1.3 Written notification.
The owner of the new or altered building shall notify the owner of the building affected in writing at least 45 days before starting the work required and request written consent to do such work. Such notice shall be companied by plans indicating the manner in which the proposed alterations are to be made
801.1.1.5 Refusal of consent.
If consent is not granted by the owner of the previously constructed building to do the alteration work required by this section, such owner shall signify his or her refusal in writing to the owner of the new or altered building and to the commissioner; and the owner of the new or altered building having submitted plans that conform to the requirements of this section, shall thereupon be released from any responsibility for the proper operation of the equipment due to loss of draft and for any health hazard or nuisance that may occur as a result of the new or altered building. Such responsibilities shall then be assumed by the owner of the previously constructed building. Similarly, should such owner fail to grant consent within 45 days from the date of written request or fail to signify his or her refusal, he or she shall then assume all responsibilities as prescribed above.
They do need to ask your consent, but if consent is not given the responsibility reverts to you to bring the chimney into compliance. But they also have the obligation to maintain the addition. Not sure that lawsuit has any legs. Making them fix it now might.
>They do need to ask your consent, but if consent is not given the responsibility reverts to you to bring the chimney into compliance.
Wow, that sounded pretty stupid.
Nintzk, go find a lawyer, or else you might get more moronic jumbled responses like nycsport's.
letting this go for ten years may have effectively granted rights (in jargon, an easement) to your neighbor's penthouse. Call a lawyer.
ali r.
DG Neary Realty
I think you better hurry up and consult a lawyer else a statute of limitations might kick in and they end up with an easement by default. Could be like one of those 'squatters' thing where if you do nothing for certain amount of years they get to keep it.
does anyone know if there are in fact statutes of limitation which would apply here?
case in point: a friends brownstone where, years ago, neighbor built an extension/deck which clearly extends about a foot into friends lot, such that friend cant now build extension/deck completely on his property without demo'ing that built by neighbor.
Yikes, if we are indeed dealing with an easement "by prescription," the length of time is going to vary by locality, which is another reason for the OP to consult a lawyer... but in NYC ten years might be enough.
ali
The building code section is called Adjoining Chimneys and is written in pretty easily understandable language. Look it up...
On a practical level - what do you want out of this? A better-built and better-looking chimney? Cash?
Realistically, the chimney is not going back to its previous height. It could undergo some work -- by them at your request, by you with their cash, or by you with your own cash. (The building code specifies "by them," unless you refused access, in which case you have to do it yourself or accept liability for any problems caused by the resulting non-code-compliant chimney.) I doubt anyone will reward your lawsuit with anything beyond the performance of what was required at the time of the alteration but the adjacent building failed to deliver (then or since). You're not going to get a payoff for 'trespassing' (10 years ago?) or a share of the penthouse rent.
The 2 sections that apply to your situation
801.1.1.3 Written notification.
The owner of the new or altered building shall notify the owner of the building affected in writing at least 45 days before starting the work required and request written consent to do such work. Such notice shall be companied by plans indicating the manner in which the proposed alterations are to be made
801.1.1.5 Refusal of consent.
If consent is not granted by the owner of the previously constructed building to do the alteration work required by this section, such owner shall signify his or her refusal in writing to the owner of the new or altered building and to the commissioner; and the owner of the new or altered building having submitted plans that conform to the requirements of this section, shall thereupon be released from any responsibility for the proper operation of the equipment due to loss of draft and for any health hazard or nuisance that may occur as a result of the new or altered building. Such responsibilities shall then be assumed by the owner of the previously constructed building. Similarly, should such owner fail to grant consent within 45 days from the date of written request or fail to signify his or her refusal, he or she shall then assume all responsibilities as prescribed above.
As uptownJoe says, pretty clear cut.
Its strictly a matter of the facts of your case
http://www2.iccsafe.org/states/newyorkcity/Mechanical/PDFs/Chapter%208_Chimneys%20and%20Vents.pdf
And if you read 801.1.1.1, the neighbor had the requirement to do such work.