Is Your Balcony Enclosure “Safe” from a DOB Inspection?

In the wake to two tragic fatalities resulting from balcony railing failures, balcony enclosure compliance is being ensured through required façade inspections by the Department of Buildings (“DOB”).

The Façade Inspection and Safety Program (“FISP”, formerly referred to as Local Law 11) requires that properties higher than six stories must have exterior walls and appurtenances, such as balconies, inspected every five (5) years. A technical façade report must be filed with the DOB.

Buildings are then classified as “Safe,” “Unsafe,” or “Safe with a Repair and Maintenance Program” (“SWARMP”).  Buildings containing balcony enclosures installed without the proper permit will be classified as unsafe or SWARMP depending on the stability of the installation.

Current updates in the rules regarding permits for balcony enclosures, combined with the history of regulations, guidelines, memorandum and the DOB’s increased rigor in enforcing these requirements, can have a major impact on New York City’s co-ops and condos.

On July 17, 1976, the DOB issued a memorandum that permitted enclosed balconies so long as they were readily removable, lightweight, non-combustible and included no masonry or insulation (the “1976 Memo”).  Pursuant to the 1976 Memo, screened enclosures could be installed without a permit and enclosures with solid panels required only the filing of a building notice.  These enclosures were not considered permanent parts of the building and were, therefore, not accounted for when calculating Floor Area Ratio (“FAR”) for zoning purposes.

Although the guidelines were lax, many apartment dwellers nevertheless failed to comply with the 1976 Memo’s requirements when enclosing their balconies or terraces, often times knocking down walls to incorporate these structures or installing heating and cooling systems in order to utilize the space year-round.  Such structures required permits even under the old legal regime, however, the DOB was not vigilant in enforcing compliance.

Effective as of October 11, 2011, permits became required for open screen balcony enclosures exceeding 40 feet above grade and any weather-resistant balcony enclosures, such as windows and solid walls pursuant to 1 RCNY § 101-14.  Although 1 RCNY  §  101-14 effectively superseded the DOB’s 1976 Memo, the 1976 Memo nevertheless governed FISP inspections until it was officially rescinded on December 3, 2014.

Under these new DOB requirements, any screened enclosure installed prior to October 12, 2011 can remain without a permit so long as evidence can be furnished that the structure was installed before this date.  If such evidence cannot be provided and the screen exceeds 40 feet above grade, the enclosure will need to either be removed or permitted.  Given that many of these enclosures have been in place for decades, that ownership has likely changed hands, and that buildings have changed management and boards, it is often difficult to locate any records establishing the date of an enclosure’s installation and a permit will likely need to be obtained.

Weather-resistant balcony enclosures, such enclosed greenhouses or sunrooms, pose a bigger problem.  These structures can remain so long as they have a building notice or permit and are being utilized per the requirements of the 1976 Memo.  Again, given that many of these greenhouses and sunrooms were built decades ago, locating filings will be difficult even assuming the enclosures were legally constructed.  Accordingly, a proper permit will likely need to be obtained.  This will add to a building’s FAR, as these enclosures will no longer be treated as “temporary structures.”  If a building is already built to its maximum FAR, the enclosure will not be able to be legalized because it would violate zoning laws and will need to be removed.

As the Façade Inspection and Safety Program uncovers compliance issues, co-op and condominium owners who find themselves being required to remove what they have come to view as part of their home are not going to be happy and we expect to see a proliferation of disputes with boards over this issue.

Maria Boboris is an Associate at Braverman Greenspun, a law firm dedicated to representing Boards of Directors and Managers of Condominiums and Co-ops in the metropolitan New York City area. Over the firm’s 50-year history, we have served as general counsel to hundreds of properties and developed broad expertise in litigation, transactions, leasing, financing, and the governance issues facing cooperatives and condominiums. One of the first firms in New York to specialize in this practice area, Braverman Greenspun provides some of the most sought-after counsel in the industry.