Monday, February 17, 2020

Thirty-eight years ago, a Barnard College student named Grace Gold was hit and killed by a terra cotta masonry object that fell from the façade of a building at 115th Street and Broadway. The tragic end to Grace’s life was the impetus for the 1980 passage of New York City Local Law 10, which is now named the Facade Inspection Safety Program (Local Law 11). (Refer to RCNY Sections 103-04 Periodic Inspection of Exterior Walls and Appurtenances of Buildings.) In 1997 and 1998, New York City recorded several failures of exterior walls. These incidents resulted in the passage of the even more comprehensive and stringent New York City Local Law 11, which requires that the entire building, not just the facade, must be examined and certified.  The law is administered by the Facades Compliance Division of the New York City Department of Buildings; filing fees and penalties are enforced by the Department of Buildings. The purpose of the law is to ensure pedestrian safety by preventing building elements from falling on pedestrians. Over 12,500 New York City buildings are currently subject to inspection.

In brief, the original law required that buildings that are six stories or more above grade must undergo periodic inspections of their street-facing exterior facades. Following the 1997 and 1998 incidents, the law was expanded to require inspection of all exterior walls and appurtenances—the entire building envelope, not only the street-facing facade. This was done in part to protect building workers who work behind and on the sides of buildings. Inspections must include walls facing the rear and sides of adjacent buildings, except for walls that are 12” or less from a neighboring building. No longer are the visual “binocular” street-level inspections from afar allowed as in Local Law 10; instead, the inspector must use a scaffold or other observation platform and perform a physical inspection. At least one ground-to-roof inspection is required and the results are to be compared to the building’s condition as reported in previous Local 10 and 11 reports.

In the currently required reports, the inspector can no longer certify the building as Pass or Fail: Local Law 11 mandates a determination of Safe, or Safe With a Repair and Maintenance Program (SWARMP) or Unsafe. The report must be signed by the registered architect or licensed engineer who performs the inspection and by the building’s owner. No repair condition previously described can be reported in two consecutive reporting cycles. A cycle lasts for five years; cycle 8 ends on 2/21/20. In 2013, the Seventh Cycle was amended to require supplemental inspections of the building’s elements (guardrails, balconies, and fire escapes), in order to ascertain that these components are code-compliant and structurally stable.  Inspections now include antennas, air conditioning units, flower boxes, flagpoles, signs, parapets, window guards, canopies, satellite dishes, and any equipment attached to, or protruding from, the facade. In Cycle 8, following the fatal fall in 2013 of a woman when her balcony railing gave way, balcony railings were also required to be inspected.  There are detailed requirements to be met before components such as balconies, fire escapes, and guardrails can be designated as Safe.   For example, balcony enclosures erected without a permit shall not be considered Safe by the Department of Buildings.

A finding of Unsafe mandates that the condition must be repaired within thirty days (unless an extension is granted) and that the public must be immediately protected.  Pursuant to the determination that a building and/or its element is Unsafe, the inspector must immediately notify the building’s owner and the Department of Buildings. An amended report is submitted after the repairs are completed.

Facades that are determined to be SWARMP have the potential to become Unsafe, so in the technical report the inspector must state a specific month and year by when the condition must be rectified.  However, the condition cannot be classified as SWARMP for two consecutive reporting cycles; if it still exists then it must be reported as Unsafe.

Buildings must be inspected only by licensed Registered Architects or Professional Engineers who perform these “critical examinations” and submit their reports to the Department of Buildings. The Registered Architect or Professional Engineer must have at least one year of relevant experience.  The inspector is called a QEWI (Qualified Exterior Wall Inspector).

Finally, a word to the wise: If you are purchasing an apartment, request that your buyer’s agent and/or your attorney ask about the building’s FISP compliances.  If the building needs repairs, is there enough money in the reserve fund to cover them, or will an assessment, a bank loan, or a refinance be required?  Will the repair work inconvenience you? If you are renting an apartment, if the building will need repairs, to what extent will repair work impinge on your quiet enjoyment of the premises, and is it safe for you to inhabit the building?

 By Vivian J. Oleen

 Vivian J. Oleen is an associate broker with Sopher Realty. 

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