When Your Next-Door Neighbor Starts Excavating...

Written By: Randy J. Heller

digger working at construction in excavation pit
The Building Code imposes strict liability on a builder who damages a neighbor’s property while excavating. The neighbor must grant a license to the builder to come on to their property and protect the existing building. But what if the excavator never asks for the license?
The New York City Building Code (contained in the Administrative Code of the City of NY) (“BC”) includes provisions protecting adjoining property from damage during construction or demolition work. BC 3309.4 imposes strict liability for excavation work that causes damage. Whether or not the builder was negligent, if the excavation work (regardless of depth) causes damage to the adjoining property, the builder will be liable for the damage.
To prevent damage, the BC contains provisions requiring the builder to give notice to their neighbor, receive a temporary license to enter upon the neighbor’s property for protection against damage, and monitor any movement. If the neighbor refuses to grant the license, the builder will no longer be strictly liable for any damage the excavation may cause, and the neighbor becomes responsible to protect their property.
But what if the builder fails to ask for the license? Must the neighbor nevertheless prove to the court that they offered a license to keep the liability from shifting onto themselves? Case law previously imposed the duty to establish the existence of the license on the neighbor. If they could not prove that, the court would not absolve the neighbor of responsibility for protecting their own building. A recent case involving construction in Queens, decided by the Appellate Division, found the logic of those older cases to be “absurd” and rejected them.
In 211-12 Northern Blvd. v. LIC Contracting, the builder had their architect send a “5-Days Notice” to the neighboring property owner advising that the builder was about to start excavation on the existing vacant lot to build a new 3-story building. The notice invited any “questions or concerns” but did not request a license. Once excavation began, cracks appeared in the neighbor’s building. The neighbor called the Department of Buildings (DOB) which then issued a Stop Work Order to the builder. The DOB ordered the builder to backfill the open cut and to enter the neighbor’s property to install crack monitors.
The neighbor sued the builder for the damage to their building, as well as for trespass and nuisance. The lower court granted summary judgment to the neighbor on the issue of liability (finding the builder liable, but reserving the measure of damages for a later trial). On appeal, the builder argued that because the neighbor hadn’t proven that they granted a license to the builder, the neighbor had the obligation to protect their own building.
The Appellate Court reviewed all the BC sections regarding excavation and notice, but ultimately held that placing the onus on the neighbor to volunteer the license without having been asked for it would be an “absurd result.” The lower court affirmed the holding, granting summary judgment to the neighbor, and clarified that if no prior request for a license can be shown by the builder, absolute liability remains with the builder, and the neighbor is relieved of responsibility for protecting their building.
As an aside, BC 3309.1.1, entitled “Notification,” provides that the builder must give 60 days’ notice (not 5 days’ notice) of the commencement of the work.  Once a request for a license is made, the neighbor must afford the builder a license to enter their property as is necessary to protect it during the work. However, as the court made clear, an adjoining property owner has no occasion to afford a license where no request for a license has been made.
As icing on the cake, the court held that the builder’s entry into the neighbor’s property to install crack monitors without the neighbor’s permission constituted trespass—for which the builder could be held liable for additional damages. Even the defense that the DOB had directed the builder to enter the premises to install them could not hold up! And for extra measure, the court held that the damage to the neighbor’s building constituted a “private nuisance” because it interfered with the neighbor’s ability to enjoy and use their building. Thus, the builder could be liable for all the lost rent resulting from tenants having to vacate the damaged building.
The takeaway is that property owners must be vigilant not only to give 60-days’ notice of their work to neighbors, but to expressly request a license to enter upon the neighbor’s property to protect their building. The Building Code requires it and the courts now agree.
about the authors

Randy J. Heller


For over forty years, Mr. Heller has specialized in construction law and litigation, representing some of the largest and most successful contractors in the nation.

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