Notice to Cure Dealing With Building Violations

 Despite the due diligence of boards and property managers, building code  violations can occur during routine inspections—be it a faulty pipe, broken step or rusted fire escape. It is the speed and  accuracy of addressing these infractions which is critical, although frequent  problems are often overlooked, leading to costly headaches.  

 Common Offenders

 The list of most cited co-op and condominium violations includes improper repair  to masonry and walls, obstruction to entry and exit ways, working without a  permit and failing to comply with elevator inspections. “Other common violations include failure to perform annual boiler and burner  inspection, failure to perform an annual elevator inspection and failure to  perform a facade safety inspection,” says Yakov Saric, president of City Drafters and Consultants, LLC, a building  code and zoning consulting firm that provides expediting services with various  city agencies.  

 While all boards and managing agents must adhere to rules and regulations  clearly spelled out in the New York City Department of Buildings (DOB) Building  Code, Electrical Code, Zoning Resolution, New York State Labor Law and New York  State Multiple Dwelling Law, the purpose of building code violations, and their  enforcement, is not merely to maintain a building in proper working order but  to mitigate risk. “There, of course, is the issue of liability,” says attorney Ronald Steinvurzel of the White Plains-based Steinvurzel Law  Group P.C. “But the amount of violations levied on a daily basis is far more than one might  think, some of which come with hefty fines.”  

 Who is Watching Who?

 Since most boards and managing agents want to be in compliance to avoid  liability and reduce the risk of paying fines, the majority do their respective  best to stay ahead of the curve. The problem is that an area of a building that  was checked weeks or months earlier could fail for a number of reasons and  officials are keeping a consistently watchful eye.  

 “Lately, I have been seeing a lot of fire department violations,” says Attorney Andrew Freedland with the Manhattan-based law firm of Rosen  Livingston & Cholst LLP. “But I also see landmark violations and DOB violations,” he says, referring to the Department of Buildings, the Landmarks Preservation  Commission (LPC) and the Fire Department of New York (FDNY).  

 In most cases, the DOB enforces the building code and zoning regulations,  explains Mercedes Hernandez, president of S & M Enterprises, a building and zoning code consulting firm. “If someone calls 311 with a complaint, the department will send an inspector  out,” she says. “If complaint is valid, a violation is issued.”  

 A violation often ends up before the ECB or the Environmental Control Board. The  ECB is an independent administrative tribunal where judges hear cases on  potential violations and determine if fines should be issued. Thirteen  different city agencies write quality-of-life tickets and file them with the  ECB to be adjudicated. An ECB decision may be appealed.  

 Comprendez?

 When it comes to education, Steinvurzel says proactive board members trying to  understand building code regulations can be easily confused as there is a steep  learning curve. “The city does offer fairly simple, easy to read and understand practice guides  that can help people new to the process,” he says. “It is best when facing a violation though to rely on a representative such as an  attorney that has invaluable experience in the field.”  

 Even the best-run building could overlook or miss a violation, and in essence,  open the proverbial Pandora’s Box. “I think proactive building management goes a long way. Making sure you hire good  contractors who do work properly and work within the codes,” says Freedland. “However, to some extent, I think it’s impossible to completely avoid receiving violations. If an inspector visits  even the best-run building, I think they are bound to find a few code  violations if they look hard enough.”  

 While perhaps a tempting excuse, a board or managing agent that tries to plead  ignorance or tries to pass the blame to subcontracted architects or engineers  is not a viable defense. “The policies and procedures are constantly changing but only experienced and  dedicated professionals who work with city agencies can provide a proper  service,” says Saric. “Some companies provide monitoring and alerts, some are just waiting to be hired.”  

 Receiving Bad News

 While it is not pleasant to receive notice of a building violation, it is a  common occurrence which seasoned board members and managing agents should  expect. There are protocols in place to lessen the blow and streamline  corrective efforts.  

 “Typically the violations come in the mail, served through the secretary of  state. This is one reason it’s important to make sure the secretary of state has up to date contact info for  the building—an address for service of process. If a violation is sent to an old address or  former managing agent, it may never be received and the co-op or condo will be  defaulted at the hearing for not appearing,” says Freedland. “The default penalty is significantly higher than the penalty which is available  for appearing and entering a guilty plea. In some cases, buildings have only  found out about a violation after a default judgment has been entered, and it  can be difficult, if not impossible to vacate the default,” he adds.  

 The first question a board usually has is when the penalty accrues and if there  are ways to mediate problems before a check is written to the city. “In most cases, a co-op or condo board can avoid paying fines if they repair the  violations before the hearing date,” says Steinvurzel.  

 Saric adds that in each borough the DOB offers a “homeowner’s night” one day a week where issues can be discussed with DOB plan examiners and  professionals. “DOB has great materials available online to guide homeowners and boards through  the maze of requirements and regulations,” he says.  

 The best option, says Hernandez, is to not do unauthorized work. “It is best to ensure that all work requiring permits gets filed with the DOB.”  

 While certain violations are considered minor and “fixable” without fines, there are other more serious violations classified in a  particular “category” and “class” that do not have a “cure” process, explains Freedland. The DOB states, for example, that if a building  receives an immediately hazardous (Class 1) Environmental Control Board  violation, it must immediately correct the violating condition and submit a  Certificate of Correction to the department. Failure to correct the ECB  violation will result in issuance of a DOB violation with a $1,500 civil  penalty. The civil penalty is in addition to penalties assessed by the  Environmental Control Board.  

 In certain cases, a dispute will arise regarding a board accusing the managing  agent of failure to notify them of the building code violation. These scenarios  are not all that common but can be a tricky and expensive game of “he said, she said.” This argument is usually reserved for the courts. “If a manager or the board becomes aware of a violation they have a duty to  correct it as soon as possible. Of course the more serious the violation, the  more expeditiously it should be corrected,” says Freedland. “The board/manager could be liable for not correcting a violation, if some type  of injury is sustained as a result of their negligence. In many cases, they may  be covered by insurance.”  

 Going to Court or Going to Trial?

 Even if a proactive board or manager is addressing the violation, when a  building receives notice, it states that the owner, or property manager on  record, must appear for a hearing. “These violations go to trial fairly often,” says Steinvurzel. He explains that the majority of violations will be heard by  the ECB. Judges hear cases, just like a court, with certain distinct  operational differences.  

 For example, DOB notes that “the ECB only hears cases in which New York City has charged a person or business  with violating city laws that protect health, safety, and a clean environment.  These violations are not crimes. If you are found guilty of an ECB violation,  you need to pay a fine. You may also be ordered to fix the violation(s).”  

 In many cases, especially during construction, a building or property may  receive numerous code violations. These violations may run the gamut from Class  1 (Immediately Hazardous), Class 2 (Major) or Class 3 (Lesser). “Every citation carries a maximum of $10,000 per citation,” says Steinvurzel. In this case, a mediation process is entered by opposing  attorneys at which point a “stipulated penalty offer” is reached.  

 “Whereas there might be seven violations totaling $70,000, an agreement may be  reached where four of the seven are overturned and a lesser amount is paid on  the remaining three violations,” says Steinvurzel. “At this stage, it would be crazy not being represented by an attorney because he  or she will get a much better deal than is originally offered.”  

 The most common result is that the co-op board or the community association  agrees to remedy the code violation within a specific period of time and pay a  negotiated fine. The case is then continued until a court ordered date is  offered for compliance. An inspector will then revisit the property to insure  that the violation has been remedied. If it has, the case is usually dismissed  and the fine is paid.  

 Even though a violation and case is considered cleared by the city, a record,  tantamount to points on a driver’s license, will exist, which is available for all to see. “The DOB has a Building Information System (BIS) where homeowners and board  members can see all the DOB and ECB violations,” says Saric. Additionally, he notes that the Department of Housing Preservation & Development (HPD) has a web portal listing all housing maintenance violations. “In many cases, a building will correct a violation but do not take the next step  of having it removed as of record, which can create problems when they  refinance their building mortgage,” notes Freedland.  

 In the end, keen oversight coupled with building code knowledge will avoid most  trips to court and more often than not save unnecessary expenditures in the way  of steep fines.   

 W.B. King is a freelance writer and a frequent contributor to The Cooperator.  

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2 Comments

  • I live in a cooperative in Westchester NY. After writing 3 letters over three months to the Board of Directors to have a code violation fixed and receiving no answer, I went to the Yonkers Department of Housing and Buildings and asked for their help. An inspector visited my apartment, agreed with me, and then issued a violation notice. 24 hours after the Hearing the item was resolved. What this shows is that if you want a Building Code Violation resolved and get no response from your Board of Directors, do your homework and then - GO FOR IT ! The violation: "Mechanical ventilation system (roof fans) for bathroom in above apartment and numerous other apartments throughout entire building are not working (9NYCRR 1245.le) 1245.1. Responsibility – The owner, operator , or agent in control of the building shall be responsible for the following: e. Maintenance of plumbing, heating, and electrical equipment and systems, appliances, fixtures, as well as other building equipment and facilities, in an appropriate, good operative, clean and sanitary condition. NOTE: CORRECTION OF ALL VIOLATIONS MUST COMMENCE IMMEDIATELY. NOTICE OF HEARING"
  • Constant checking if there is any open 311 complaints on your property and resolve it BEFORE the inspector arrives is the cheapest and most easiest way to avoid fines. Great column :) Mark DOB Alerts Corp.