Be a Good Neighbor: Techniques to Mitigate the Risk of Claims From Adjacent Landowners

In May 2020, a real estate developer performing excavation work in New York was sued by a neighboring property owner for property damage. A court overturned an injunction preventing the developer from continuing excavation work after reviewing a preconstruction assessment that showed the damage to the neighboring property was preexisting—not caused by the excavation (see Feldman v. 3588 Nostrand Ave. LLC as an example)

A preconstruction assessment is one of the most important tools in the arsenal of a developer protecting itself from neighbors bringing claims for property damage. Part two of this series will review the benefits of risk mitigation tools recommended for developers such as postconstruction assessments and monitoring during construction.

Preconstruction Assessment Overview

A preconstruction assessment is a review of a property adjacent to a site where demolition and/or construction activities are to take place. The goal of the assessment is to establish baseline conditions by conducting an inspection of buildings and infrastructure, including identification of existing damage to improvements, so that causation of any alleged damages can be more easily determined.

The types of construction activities that would warrant a preconstruction assessment include foundation work in close proximity of adjacent structures; overhead work such as scaffolding and overhead crane access; demolition work generally, and particularly where blasting work or explosives are used; delivery routes where heavy hauling will occur; and construction work above existing utilities or transportation lines (i.e. subway tunnels).

The following items should be included in a preconstruction assessment:

• Location of the proposed structure and adjacent structures;
• Evaluation of potential concerns and sensitive buildings and/or infrastructure;
• Location and conditions of existing structures or monuments;
• Existing roads and parking lots to be retained;
• All utility lines, gas lines, phone lines or cable lines near the proposed construction area;
• Any existing objects to be demolished, and any existing trees or vegetation to be retained;
• Observed deficiencies and anomalies;
• Identification of conditions such as background noise, lighting, vibrations, water conditions and ambient air quality sufficiently in advance of project commencement; and
• Still photos, videos and survey documentation of existing conditions in addition to a written summary of findings.

Preconstruction Assessment Technology

The preconstruction assessment can be conducted using photo, video, survey tools including laser scanning, vibration monitoring equipment and a variety of other tools depending on the nature of the work being conducted. For example, decibel meters should be used when noisy work is anticipated, and passive and active collectors should be used when air quality will be affected. The preconstruction assessment should also evaluate subsurface conditions that are important to wave transmission such as localized geotechnical information and regional soil conditions and lithology. The preconstruction assessment can also be used to identify signs of structural issues on adjacent properties that should be monitored throughout the construction to monitor potential changes. The preconstruction assessment can ultimately be compared to a follow-up post-construction assessment to determine whether damage occurred during construction.

Who Should Conduct a Preconstruction Assessment?

A third-party engineering group should conduct the assessment to minimize conflicts of interest. The conducting party and the adjacent property owner may want to retain their own third-party investigators to provide separate condition assessments. This is acceptable, however, both parties should meet to review the condition assessments and confirm and agree as to the existing conditions on the neighboring property.

Establishing a Regulatory Baseline

In addition to establishing a baseline for structural site conditions, developers should consider involving relevant regulators in the project before project commencement, for example, by inviting the regulator to the jobsite prior to commencement. This way, the regulator is aware of baseline site conditions and is familiar with the site and the project scope. Early involvement of relevant regulators sets a productive tone for the relationship, and can be a cost-saving measure as it prevents delay-inducing surprises that can result from involving a regulator later in the project or after issues arise.

Monitoring during Demolition/Construction

Monitoring during demolition and construction can allow developers to identify concerns quickly, allowing for rapid work modifications and proactive management of contractor behavior to limit more severe issues that might develop during field activities. Often, early discovery of a developing issue can lead to proper identification of the root source of the issue, potentially a source wholly unrelated to the work on site. Developers should consider use of monitoring tools that alert project managers of site conditions in real time.

The background assessment provides a key element to addressing potential concerns identified during the on-going monitoring process, as it allows for a comparison to baseline conditions. Monitoring detail will be addressed in part three of this series.

This is the second article in a three-part series. Part one reviewed how to avoid a lawsuit on a project in close proximity to other buildings.