In connection with obtaining the NYC Department of Buildings' (DOB) approval of protection plans, which involve the installation of protection of an adjacent property, either physically on the adjacent property or in the air space above the adjacent property, the party performing the demolition, construction or renovation work now needs to provide proof to the DOB that it has an access (license) agreement with that adjacent property owner for the proposed protection or has filed a RPAPL §881 proceeding to gain such access to the property from the court.

This significant new requirement (which is not officially codified or otherwise written), will affect the ability of an owner/developer to get its plans approved while working out agreements with its neighbors.

This presents a troublesome catch-22 because many neighbors insist upon seeing "DOB-approved" plans before they sign the agreement. Owners/developers should also be careful to ensure that any confidentiality provisions of the access agreement will permit disclosure to the DOB.

This new requirement is an effort by the DOB to close the commonly used loophole of using an adjacent property's air space for cantilevered protection or other alternative overhead protection systems to avoid having to negotiate with the adjacent property owner for access. This will surely affect how negotiations will progress.

Owners/developers should be cautious to take this timing issue into consideration, while neighbors should understand that they cannot put the cart before the horse and/or request the impossible of an owner/developer.