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What Happens When a Party Wall Spoils the Party?

By Adam Leitman Bailey, John M. Desiderio and Jeffrey R. Metz.

Many reasons occasioned by the Housing Stability and Tenant Prevention Act disincentivized property owners from improving existing buildings because either (a) they could not greatly increase rents after a rent-regulated tenant vacated a unit, or (b) they could not obtain approved rent increases by improving the major components of a building.

The only way to create a free-market building, which would enable a landlord to pay its mortgage and other expenses, was to demolish the existing building and build a new one.

As a result, party wall litigation and RPAPL 881 litigation increased disproportionally to the many other types of real estate litigation in our office, and the issues explained in this article were foreign to many developers. Thus, we are writing to explain many of the most common disputes that arise over the party walls.

New York City abounds in building structures—both commercial and residential—constructed adjacent to each other, but which share a single wall supporting both buildings and that lies upon the property line separating the properties on which each building stands. Such walls are known as “party walls.” The law of party walls is well and long established in New York. See Brooks v. Curtis, 50 NY 639 (1873).

Party Wall Basics

Mutual Easements of Support Only. Where the party wall is partially on one piece of land and partially on the other, and runs directly over the boundary between the two parcels, “[i]n the absence of any agreement or statute providing otherwise, ‘[e]ach of the two adjoining owners…owns in severalty so much of the wall as stands upon his own lot, each having an easement in the other strip for purposes of the support of his own building.’” Sakele Brothers, LLC v. Safdie, 302 AD2d 20, 25, 752 NYS2d 626 (1st Dept. 2002), citing National Commercial Bank v. Gray, 24 NYS 997, 71 Hun.295 (1893), affirmed, 144 NY 701 (1895).

Therefore, “[a]lthough the land covered by [the] party wall remains the several property of the owner of each half, yet the title of each owner is qualified by the easement to which the other is entitled,” 5 East 73RD Inc. v. 11 East 73RD Street Corporation, 16 Misc.2d 49, 183 NYS2d 605 (Sup. Ct., New York Co., Special Term, 1959), “[e]ach [owner] may subject it to whatever uses are proper to a wall,” 116 East 57th Street v. Gould, 273 AD 1000, 79 NYS 243 (1st Dept. 1948), but neither owner may interfere with the wall being completely available to the other owner.

In Varriale v. Brooklyn Edison, 252 NY 222 (1929) (Cardozo, Ch. J.), the Court of Appeals explained that “[a] party wall is for the common benefit of contiguous owners. Neither may subject it to a use whereby it ceases to be continuously available for enjoyment by the other.”

As further explained in Sakele, supra, 302 AD2d, at 26, “[t]his principle means that neither owner may subject a party wall to a use for the benefit of its own property that renders the wall unavailable for similar use for the benefit of the other property.”

Party Wall Status Does Not End So Long As Two Buildings Exist. In Sakele, the building on the plaintiff’s side of the party wall had been destroyed in a fire and was rebuilt with fewer stories than the original building which had stood on that side of the party wall.

The First Department ruled that the leasing, for advertising purposes, of the exposed portion of the upper party wall on the plaintiff’s side, by the defendant owner of the adjoining building was a trespass on the plaintiff’s property rights in plaintiff’s side of the party wall.

Contrary to the defendant’s contention, as both an affirmative defense and counterclaim, i.e., “that plaintiff’s ‘easement’ in the upper portion of the subject wall terminated upon the demolition of the upper stories of the [plaintiff’s original building], and that the wall ceased to be a party wall at that time,” the Sakele court held that “[p]laintiff does not have an easement in the disputed upper north face of the wall. Rather, plaintiff owns outright that portion of the wall which stands on plaintiff’s property, and it is defendant who holds an easement therein for the support of her own building.” Id., at 27.

The court held that defendant’s use of the plaintiff’s side of the wall for advertising was “a use wholly outside the scope of [defendant’s] easement” for the support of her building.

The court further ruled that the plaintiff’s proper measure of damages for the defendant’s trespass was “the gain the trespasser [had] derived from its wrongful conduct.,” Id., and plaintiff was entitled to recover all the proceeds of defendant’s misconduct.

Conduct That Does Not Prevent Use of the Party Wall. Nevertheless, “[t]he principle [set forth in Varriale, supra] does not…prevent one of the adjoining owners from using its own side of the party wall for its sole benefit where such use has no effect on the other owner’s enjoyment of its separate property.” Sakele, supra., at 26.

This is illustrated by the facts in Lei Chen Fan v. New York SMSA Ltd Partnership, 94 Ad3d 620, 943 NYS2d 451 (1st Dept. 2012), where defendant Verizon placed steel support beams for its equipment on “a small portion” of the party wall.

The beams extended beyond the centerline of the party wall by approximately two inches, but defendant presented expert evidence that the beams neither interfered with plaintiff’s use of the wall, nor were detrimental to the party wall’s structural integrity.

The court explained that “[a]lthough an owner may not weaken a party wall or encroach onto the property of the adjoining property owner, commercial use of a party wall that is on the owner’s property is permissible.”

The court noted that the complaint did not state a cause of action for trespass, “because there is no allegation that the structural integrity of the wall or plaintiff’s property has been affected by the beams or that there is a possibility that the beams will prevent plaintiffs from using the party wall.”

The evidence plaintiff presented did not set forth “the expertise upon which she based her determination that the weight being placed upon the party wall would affect its structural integrity.”


Read the Article in The New York Law Journal 

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