S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7068--B
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               April 4, 2019
                                ___________
 
 Introduced by M. of A. LENTOL -- read once and referred to the Committee
   on Housing -- committee discharged, bill amended, ordered reprinted as
   amended  and recommitted to said committee -- again reported from said
   committee with amendments, ordered reprinted as amended and  recommit-
   ted to said committee

 AN  ACT  to  amend  the  administrative code of the city of New York, in
   relation to enacting the "adjoining owners' bill of rights"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. This act shall be known and may be cited as the "adjoining
 owners' bill of rights".
   § 2. The administrative code of the city of New  York  is  amended  by
 adding a new section 28-103.34 to read as follows:
   §  28-103.34 ADJOINING OWNERS' BILL OF RIGHTS. 1. DEFINITIONS. AS USED
 IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   ADJOINING OWNER. A PROPERTY OWNER WHO EITHER:
   (I) IS THE OWNER OF ANY PROPERTY WHICH SHARES A PROPERTY LINE WITH THE
 PROPERTY FOR WHICH A DEVELOPER HAS APPLIED FOR A PERMIT; OR
   (II) IS THE OWNER OF ANY  HISTORIC  STRUCTURE,  THE  NEAREST  PROPERTY
 LINES OF WHICH ARE CONTIGUOUS WITH OR WITHIN A LATERAL DISTANCE OF NINE-
 TY  FEET FROM THE  EDGE OF THE LOT LINE OF A PROPERTY FOR WHICH A DEVEL-
 OPER HAS APPLIED FOR A PERMIT.
   BILL OF RIGHTS. THE ADJOINING OWNERS' BILL OF RIGHTS, PUBLISHED BY THE
 COMMISSIONER ON THE DEPARTMENT OF BUILDINGS' WEBSITE.
   DEVELOPER. ANY  INDIVIDUAL,  CORPORATION,  OR  OTHER  ENTITY  WHO  HAS
 APPLIED  FOR A BUILDING PERMIT INVOLVING THE DEMOLITION OR ALTERATION OF
 AN EXISTING BUILDING AND/OR THE CONSTRUCTION OF A NEW BUILDING.
   2. THE COMMISSIONER SHALL CAUSE TO BE PUBLISHED ON THE WEBSITE OF  THE
 CITY    OF NEW YORK'S DEPARTMENT OF BUILDINGS, AN ADJOINING OWNERS' BILL
 OF RIGHTS, AS  SET FORTH BY THIS SECTION. THE COMMISSIONER SHALL FURTHER
 REQUIRE EACH AND EVERY   DEVELOPER TO BOTH  HAND  DELIVER  AND  SEND  BY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10316-04-9

 A. 7068--B                          2
 
 CERTIFIED  MAIL  TO  EACH  ADJOINING OWNER, ONE COPY OF THE NOTIFICATION
 REQUIRED BY SECTION 2209.1.1 OF THE NEW YORK CITY BUILDING CODE AND  ONE
 COPY  OF THE BILL OF RIGHTS, WHERE THE PERMIT APPLIED FOR BY SUCH DEVEL-
 OPER  INCLUDES:  (I)  AN  EXCAVATION  OCCURRING WITHIN FIVE FEET FROM AN
 ADJOINING OWNER'S PROPERTY LINE; (II) WORK PERFORMED ON A SHARED  AND/OR
 PARTY  WALL  AND/OR ENCROACHMENT IN ANY MANNER; (III) AN EXCAVATION TO A
 DEPTH OF MORE THAN TEN  FEET  ANYWHERE  ON  SUCH  DEVELOPER'S  PROPERTY;
 AND/OR  (IV)  AN UNDERPINNING, AND/OR ENCROACHMENT IN ANY MANNER ON SUCH
 ADJOINING OWNER'S PROPERTY.
   3. THE NOTIFICATION AND BILL OF RIGHTS  SHALL  BE  DELIVERED  TO  EACH
 ADJOINING  OWNER NOT LESS THAN SIXTY DAYS PRIOR TO THE GRANT OF A PERMIT
 BY THE DEPARTMENT OF BUILDINGS, ADVISING SUCH ADJOINING OWNERS OF  THEIR
 RIGHTS  UNDER  SECTIONS  3309 AND 2209.1.1 OF THE NEW YORK CITY BUILDING
 CODE. WHERE NO RESPONSE IS RECEIVED FROM AN ADJOINING OWNER BY A  DEVEL-
 OPER  WITH  RESPECT  TO  NEGOTIATION OF A LICENSE AGREEMENT AS  REQUIRED
 UNDER THE NEW YORK CITY BUILDING CODE, A SECOND COPY OF THE NOTIFICATION
 AND BILL OF RIGHTS SHALL BE DELIVERED BY CERTIFIED MAIL TO SUCH  ADJOIN-
 ING  OWNER  NOT  MORE  THAN  FORTY-FIVE CALENDAR DAYS, AND NOT LESS THAN
 THIRTY CALENDAR DAYS PRIOR TO  THE DEPARTMENT OF BUILDING'S GRANT  OF  A
 PERMIT TO SUCH DEVELOPER.
   4.  THE  BILL  OF  RIGHTS  SHALL  INCLUDE, AT A MINIMUM, THE FOLLOWING
 LANGUAGE:
   "PREAMBLE: THIS IS TO ADVISE YOU THAT                                ,
 (NAME OF ENTITY APPLYING FOR THE PERMIT) HEREAFTER "DEVELOPER",  WITH  A
 BUSINESS ADDRESS AT                          , AND A TELEPHONE NUMBER AT
                   ,  HAS  APPLIED  FOR  A  PERMIT FROM THE DEPARTMENT OF
 BUILDINGS  TO  DEVELOP                                                 ,
 (STREET  ADDRESS  OF  THE PROPERTY FOR WHICH DEVELOPER HAS APPLIED FOR A
 PERMIT FROM THE  DEPARTMENT OF BUILDINGS) HEREAFTER "SUBJECT  PROPERTY",
 ADJACENT  TO OR CONTIGUOUS WITH YOUR PROPERTY AT                        
                    , (ADDRESS OF ADJOINING OR CONTIGUOUS PROPERTY  BEING
 NOTIFIED)  AT  WHICH  ADDRESS   DEVELOPER PLANS WORK AS SET FORTH IN ITS
 PERMIT APPLICATION, INCLUDING ONE OR MORE OF THE TYPES OF WORK DESCRIBED
 IN SUBDIVISION 2 OF SECTION 28-103.34 OF  THE  NEW  YORK  CITY  BUILDING
 CODE.    YOU ARE RECEIVING THIS NOTICE BECAUSE YOU AND YOUR PROPERTY MAY
 BE ENTITLED TO PROTECTIONS UNDER LAW, AT THE EXPENSE OF  THE  DEVELOPER,
 INCLUDING  THOSE  SET FORTH IN THE BILL OF RIGHTS BELOW. YOU MAY ALSO BE
 RECEIVING THIS NOTICE IF YOU OWN A HISTORIC PROPERTY WITHIN  90  LATERAL
 FEET  OF  A PROPERTY LINE OF THE SUBJECT PROPERTY, IN WHICH CASE YOU ARE
 ENTITLED TO VIBRATION AND CRACK MONITORING AT THE EXPENSE  OF  DEVELOPER
 PURSUANT TO SECTION 2209.4.4 OF THE NEW YORK CITY BUILDING CODE.
                     ADJOINING OWNERS' BILL OF RIGHTS:
   1. RIGHT TO WRITTEN NOTIFICATION: YOU HAVE A RIGHT TO  WRITTEN NOTIFI-
 CATION,  TO BE RECEIVED BY YOU VIA CERTIFIED MAIL FROM THE DEVELOPER NOT
 LESS THAN 60 DAYS PRIOR TO THE GRANT OF ANY PERMIT RELATING TO THE  WORK
 SET FORTH ABOVE, THAT A PERMIT HAS BEEN APPLIED FOR BY DEVELOPER FOR ONE
 OR MORE OF THE ACTIVITIES SET FORTH IN SECTION 28-103.34 OF THE NEW YORK
 CITY  BUILDING  CODE.  THE NOTIFICATION SHALL DESCRIBE THE NATURE OF THE
 WORK,  ESTIMATED,  SCHEDULE  AND  DURATION,  DETAILS   OF   INSPECTIONS,
 PROTECTIONS,  AND/OR MONITORING TO BE PERFORMED ON THE ADJOINING PROPER-
 TY, PROTECTION TO BE INSTALLED ON THE ADJOINING  PROPERTY,  AND  CONTACT
 INFORMATION  FOR THE PROJECT. THIS NOTIFICATION WILL ALSO INCLUDE A COPY
 OF THIS ADJOINING OWNERS' BILL OF RIGHTS. WHERE NO RESPONSE IS RECEIVED,
 A SECOND WRITTEN NOTIFICATION SHALL BE MADE NO  MORE  THAN  45  CALENDAR
 DAYS,  AND NOT LESS THAN 30 CALENDAR DAYS, PRIOR TO THE BUILDING DEPART-
 MENT'S GRANT OF A PERMIT FOR THE WORK.

 A. 7068--B                          3
 
   2. RIGHT TO PROTECTION AT DEVELOPER'S EXPENSE: UNDER THE NEW YORK CITY
 BUILDING CODE, IT IS THE RESPONSIBILITY OF THE DEVELOPER TO PROTECT  ANY
 ADJOINING OWNER'S PROPERTY FROM DAMAGE  CAUSED BY THE DEVELOPER'S ACTIV-
 ITIES,  SUCH  AS  DEMOLITION,  UNDERPINNING,  EXCAVATION, AND/OR RELATED
 ACTIVITIES.
   3.  RIGHT  TO A NEGOTIATED LICENSE AGREEMENT: YOU  ARE WELL ADVISED TO
 HIRE AN EXPERIENCED CONSTRUCTION ATTORNEY  TO    NEGOTIATE  THE  LICENSE
 AGREEMENT.    YOU  ARE ADDITIONALLY ADVISED TO HIRE AN  ENGINEER OF YOUR
 CHOICE TO REVIEW PLANS PROVIDED BY THE DEVELOPER, IN ORDER TO  DETERMINE
 WHETHER  THE  WORK PROPOSED JEOPARDIZES YOUR PROPERTY, AND TO CONDUCT AN
 INFORMED NEGOTIATION OF THE LICENSE    AGREEMENT,  INCLUDING  PROTECTIVE
 MEASURES  FOR YOUR PROPERTY, TO BE INSTALLED AT THE DEVELOPER'S EXPENSE,
 INCLUDING BUT NOT LIMITED TO  MONITORING OF ANY MOVEMENT OF YOUR PROPER-
 TY THROUGH THE INSTALLATION OF VIBRATION MONITORS AND CRACK GAUGES,  AND
 LIMITATIONS  ON PERMISSIBLE  HOURS OF WORK. THE LICENSE AGREEMENT SHOULD
 PROVIDE THAT THE DEVELOPER OBTAIN REQUIRED INSURANCE COVERAGE AND INDEM-
 NIFY YOU  FOR ANY DAMAGES YOU OR YOUR PROPERTY MAY SUSTAIN. THE  NEGOTI-
 ATION  MAY  PROVIDE THAT THE DEVELOPER REIMBURSE YOU FOR YOUR ATTORNEY'S
 AND  ENGINEER'S FEES. YOUR ATTORNEY WILL  ALSO  REVIEW  THE  DEVELOPER'S
 INSURANCE POLICY TO ENSURE PROPER AND REQUIRED COVERAGE AND TO CHECK FOR
 ANY  EXCLUSIONS  TO  REQUIRED  COVERAGE AND/OR ANY EXCLUSIONS PROHIBITED
 UNDER SECTION 3309.2 OF THE NEW  YORK  CITY  BUILDING  CODE  OR  SECTION
 100-08 OF THE RULES OF THE CITY OF NEW YORK.
   4.  IF  A LICENSE AGREEMENT CANNOT BE AGREED UPON:  UNDER THE NEW YORK
 CITY BUILDING CODE AND APPLICABLE CASE LAW, AN  OWNER OF ADJOINING PROP-
 ERTY CANNOT SIMPLY REFUSE TO ENTER INTO A  LICENSE    AGREEMENT  WITH  A
 DEVELOPER  UNLESS  THE  STRUCTURAL ENGINEER SELECTED   BY SUCH ADJOINING
 PROPERTY OWNER'S ATTORNEY DETERMINES THAT THE PROPOSED ACTIVITIES OF THE
 DEVELOPER WILL ENDANGER SUCH ADJOINING PROPERTY OWNER'S PROPERTY. IN THE
 EVENT THAT AN ADJOINING PROPERTY OWNER AND THE DEVELOPER CANNOT AGREE ON
 A LICENSE AGREEMENT, OR IF SUCH  ADJOINING  PROPERTY  OWNER  REFUSES  TO
 DISCUSS  THE SAME, THE  DEVELOPER HAS THE RIGHT TO FILE A COURT PROCEED-
 ING  PURSUANT  TO    SECTION  881  OF  THE  REAL  PROPERTY  ACTIONS  AND
 PROCEEDINGS  LAW,  ASKING  THAT THE COURT COMPEL SUCH ADJOINING PROPERTY
 OWNER TO PERMIT ACCESS TO  THEIR PROPERTY. IN THE EVENT THAT  THE  COURT
 RULES  IN  FAVOR  OF THE DEVELOPER, THE ADJOINING PROPERTY OWNER WILL BE
 COMPELLED TO PERMIT THE ACCESS REQUESTED, AND THE BURDEN  OF  PROTECTING
 SUCH  ADJOINING  PROPERTY  THEN SHIFTS TO THE OWNER OF SUCH PROPERTY. IN
 THIS INSTANCE, THE ADJOINING OWNER IS NOT GENERALLY ENTITLED TO  RECOVER
 LEGAL FEES AND MAY NOT BE GRANTED A LICENSE FEE BY THE COURT. IT IS THUS
 OFTEN IN THE BEST INTEREST OF THE ADJOINING OWNER TO NEGOTIATE A LICENSE
 AGREEMENT WITH DEVELOPER.
   5.  RIGHT  TO A PRECONSTRUCTION SURVEY: NO EXCAVATION  WORK OF A DEPTH
 OF 5 FEET TO 10 FEET WITHIN 10 FEET OF AN ADJACENT BUILDING, OR AN EXCA-
 VATION OVER 10 FEET ANYWHERE ON THE SITE SHALL COMMENCE UNTIL THE DEVEL-
 OPER HAS DOCUMENTED THE EXISTING CONDITIONS OF ALL ADJACENT BUILDINGS IN
 A PRECONSTRUCTION SURVEY, PURSUANT TO SECTION 3309.4.3 OF THE  NEW  YORK
 CITY  BUILDING  CODE.  THE  DEVELOPER MUST OBTAIN A LICENSE AGREEMENT IN
 ORDER TO ACCESS TO THE ADJACENT  PROPERTY  TO  DOCUMENT  ITS  CONDITION.
 SECTION  3309.4.4 OF THE NEW YORK CITY BUILDING CODE ALSO SETS OUT MONI-
 TORING REQUIREMENTS, AND PARTICULAR PROTECTIONS  FOR  ADJACENT  HISTORIC
 STRUCTURES THAT ARE CONTIGUOUS TO A LATERAL DISTANCE OF 90 FEET.
   6.  RIGHT  TO  INSURANCE  UNDER  THE DEVELOPER'S   POLICY: HOMEOWNER'S
 INSURANCE POLICIES DO NOT INCLUDE COVERAGE  FOR  EARTH  MOVEMENT-RELATED
 ACTIVITIES OR THE CONSEQUENCES OF THE SAME. ANY EXCLUSION OF COVERAGE BY
 THE DEVELOPER'S INSURANCE POLICY OF ANY OF THE DEVELOPER'S ACTIVITIES ON

 A. 7068--B                          4
 
 THE  WORK  SITE  IS PROHIBITED UNDER  SECTION 101-08 OF THE RULES OF THE
 CITY OF NEW YORK. YOUR ATTORNEY SHOULD THEREFORE REVIEW THE POLICY CARE-
 FULLY FOR COMPLIANCE, BEFORE YOU  SIGN A LICENSE AGREEMENT.
   NONE  OF  THE  ABOVE IS TO BE CONSTRUED AS LEGAL ADVICE. YOUR ATTORNEY
 SHOULD ALSO BE AWARE OF, AND RESEARCH, ANY RELEVANT NEW YORK  CITY  CODE
 AMENDMENTS  AND CURRENT CASE LAW ON THE SUBJECTS ABOVE, WHICH MAY AFFECT
 HIS OR HER REPRESENTATION IN THE  PARTICULAR CIRCUMSTANCES OF YOUR CASE.
 THEREFORE, UPON RECEIVING THIS NOTICE,  YOU  SHOULD  IMMEDIATELY  RETAIN
 COMPETENT  LEGAL COUNSEL, WITH EXPERTISE IN CONSTRUCTION LAW, TO NEGOTI-
 ATE A LICENSE AGREEMENT WITH THE  DEVELOPER."
   5. THE DEPARTMENT OF BUILDINGS SHALL NOT GRANT ANY PERMIT TO A  DEVEL-
 OPER  WHOSE  PERMIT APPLICATION INCLUDES DEMOLITION, CONSTRUCTION, EXCA-
 VATION, EARTH MOVEMENT, ALTERATION, AND/OR ENCROACHMENT ON THE  PROPERTY
 OF AN ADJOINING OWNER REQUIRING EITHER A LICENSE AGREEMENT OR PERMISSION
 FROM  A COURT PURSUANT TO A FINAL DECISION IN A PROCEEDING UNDER SECTION
 EIGHT HUNDRED EIGHTY-ONE OF THE REAL  PROPERTY ACTIONS  AND  PROCEEDINGS
 LAW,  UNLESS  AND  UNTIL  SAID DEVELOPER PROVIDES TO   THE DEPARTMENT OF
 BUILDINGS:
   (I) PROOF THAT THE BILL OF RIGHTS  AND  NOTIFICATION  WAS  MAILED  VIA
 CERTIFIED MAIL TO ALL ADJOINING OWNERS; AND
   (II)  EITHER (1) AN EXECUTED AND NOTARIZED COPY OF A LICENSE AGREEMENT
 BETWEEN THE DEVELOPER AND ANY AND ALL ADJOINING OWNERS, ALLOWING  ACCESS
 REQUIRED  FOR  SAID  DEMOLITION,  CONSTRUCTION,  EXCAVATION, ALTERATION,
 AND/OR ENCROACHMENT; OR (2) A COPY OF A FINAL  ORDER  FROM  A  COURT  OF
 COMPETENT JURISDICTION IN A PROCEEDING PURSUANT TO SECTION EIGHT HUNDRED
 EIGHTY-ONE  OF THE REAL PROPERTY ACTIONS AND  PROCEEDINGS LAW PERMITTING
 REQUIRED ACCESS TO THE ADJOINING PROPERTY, AS WELL AS  SAID  DEMOLITION,
 CONSTRUCTION, EXCAVATION, ALTERATION, AND/OR ENCROACHMENT.
   6.  ANY APPLICATION SUBMITTED BY A DEVELOPER FOR A CHANGE OR AMENDMENT
 TO A PERMIT APPLICATION THAT ALTERS ITS PREVIOUSLY FILED PLANS FOR WHICH
 A PERMIT HAS  ALREADY BEEN FILED AND/OR GRANTED  BY  THE  DEPARTMENT  OF
 BUILDINGS AS SET FORTH IN SUBDIVISION FIVE OF THIS SECTION SHALL REQUIRE
 SUCH  DEVELOPER  TO NOTIFY ANY AND ALL ADJOINING OWNERS OF SUCH APPLICA-
 TION FOR AN AMENDMENT BY CERTIFIED MAIL. SUCH    NOTIFICATION  SHALL  BE
 DELIVERED TO ANY ADJOINING OWNERS NOT LESS THAN SIXTY DAYS  PRIOR TO ANY
 PERMIT,  APPROVAL,  OR GRANT OF PERMISSION FROM THE DEPARTMENT OF BUILD-
 INGS FOR ANY AND ALL AMENDMENTS OR CHANGES TO ORIGINAL PLANS  SOUGHT  BY
 SUCH    DEVELOPER,  AND SHALL REQUIRE SUCH DEVELOPER TO SECURE EITHER AN
 AMENDED AND  EXECUTED LICENSE AGREEMENT, OR A FINAL RULING  BY  A  COURT
 PURSUANT  TO A PROCEEDING BROUGHT UNDER SECTION EIGHT HUNDRED EIGHTY-ONE
 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PERMITTING THE  CHANGE
 OF PLANS SOUGHT BY SUCH DEVELOPER, SUBJECT TO THE REQUIREMENTS OF SUBDI-
 VISION  FIVE  OF  THIS SECTION, AS A CONDITION PRECEDENT TO THE GRANT BY
 THE DEPARTMENT OF BUILDINGS  OF  PERMISSION  TO  AMEND  OR  CHANGE  SUCH
 DEVELOPER'S  ORIGINAL  PLANS  PURSUANT  TO  WHICH A PERMIT WAS INITIALLY
 GRANTED.
   7. COPIES OF THE BILL OF RIGHTS SHALL BE PROVIDED BY THE  COMMISSIONER
 TO  ALL  STATE  AND  LOCAL  ELECTED OFFICIALS, COMMUNITY BOARDS, AND ANY
 OTHER ORGANIZATIONS AS THE COMMISSIONER SHALL DEEM APPROPRIATE.
   8. THE BILL OF RIGHTS SHALL HAVE APPENDED TO IT THE FOLLOWING INFORMA-
 TION, IN ADDITION TO ANY OTHER INFORMATION THE COMMISSIONER  SHALL  DEEM
 APPROPRIATE:
   (I)  CONTACT  INFORMATION  FOR  CONSTRUCTION  ATTORNEYS AND STRUCTURAL
 ENGINEERS FOR USE BY ADJOINING OWNERS AND DEVELOPERS;
   (II) A LIST OF THE  SERVICES  SUCH  ATTORNEYS  AND  ENGINEERS  CAN  BE
 EXPECTED TO PROVIDE;

 A. 7068--B                          5
 
   (III) A SCHEDULE OF ANY "HOMEOWNER'S RIGHTS" HELD BY THE DEPARTMENT OF
 BUILDINGS  AT  ITS  BOROUGH  OFFICES  IN  NEW  YORK CITY TO REVIEW PLANS
 SUBMITTED BY  DEVELOPERS, AND THE ADDRESSES OF SUCH OFFICES; AND
   (IV)  CONTACT INFORMATION AND OTHER RESOURCES WITHIN THE DEPARTMENT OF
 BUILDINGS OR CITY EMERGENCY SERVICES RELATED TO DEMOLITION,  EXCAVATION,
 EARTH  MOVEMENT,  UNDERPINNING  AND ENCROACHMENT, DEVELOPMENT PLANS, AND
 PERMITS IN  THE EVENT OF DAMAGE CAUSED BY A DEVELOPER THAT  MAY  REQUIRE
 AN  IMMEDIATE  STOP  WORK ORDER OR OTHER PREVENTATIVE MEASURES BY EITHER
 THE DEPARTMENT OF BUILDINGS OR CITY EMERGENCY SERVICES.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law. Effective immediately the  addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such effective date.