It’s My Party (Wall) And I’ll (Sue) If I Want To

Victor Metsch | Smith Gambrell & Russell | May 20, 2019

Party walls shared by adjoining townhouse are ubiquitous in Manhattan and, as recent case illustrates, are an invitation to litigation– especially where a sale at an astronomical price is followed by a massive top-to-bottom renovation.

Kai and Doris Chang own a townhouse on East 92nd Street. A limited liability company (LLC) owns the townhouse next door. The party wall is 40 feet high and was originally one foot thick.

The LLC hired Trident Restoration to do extensive renovations on its property, including relocating the bathrooms and kitchen and altering the building’s plumbing.

The Changs discovered a hole in the third-floor bedroom of the their townhouse; pipework anchored brackets installed on their side of the party wall, running the full height of the building; and another hole on the second floor, directly under the third-floor breach.

The Changs’ professional engineer found that substantial portions of the party wall had been removed; the renovation failed to conform with the plans and drawings filed with the Department of Building; and compromised the fire separation rating of the party wall in violation of City building codes.

The Changs sued for trespass damages, and injunction and restoration of the party wall.

The LLC hired an engineer. The two engineering firms inspected the work and prepared reports regarding the fireproofing and integrity of the party wall. The Changs’ engineer found areas of missing brick within the property line of the Changs’ townhouse that should be replaced. The LLC engineer’s responsive report stated that “[w]hile the wall structural integrity has not been compromised, the contractor will repair all locations where openings [in the brick] were noted.”

The Changs reported additional damage: six new holes in a third-floor room. The LLC and Trident conceded that the holes were drilled in error and offered to repair the holes at their cost.

The Changs alleged that the LLC and Trident had built an additional wall (which they refer to as a “concrete masonry unit” wall) on top of the party wall on the roof; the additional wall encroached onto their side of the party wall by two inches; and the encroachment existed along 55 feet of the party wall. They also alleged that a new cable box rested on their side of the party wall.

The Changs later discovered new damage to the fourth floor of their townhouse—the attachment of a cable to the new cable box, and the fastening of the cable to their rooftop gutter. The Changs claimed that the cable prevented them from properly cleaning the gutter, causing the gutter to overflow and cause water damage on their side.

The Court could not determine whether that work had been completed. And the LLC and Trident did not establish that the party wall in its current form matched the drawings filed with the DOB.

The LLC and Trident asserted that the reports exchanged between the engineers demonstrated that the party wall was not load-bearing and that its structural integrity remained intact. The Court was unpersuaded.

The Court found that some of the LLC and Trident’s’ alleged conduct, in drilling through the party wall and installing pipework, was an encroachments/ trespass or private nuisance.

The Real Property Actions and Proceedings Law provides that “[a]n action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land.” So the Court found that the Changs could seek injunctive relief to abate a private nuisance.

Avoiding the Death Penalty in Performance-Based Design: The Evolution of Performance-Based Codes

Christopher (Kit) S. Houston | Taft Stettinius & Hollister LLP | January 30, 2019

There was a time and place where a violation of the local building code could result in the execution of the contractor. The time was the 18th century B.C., and the place was Babylon. Hammurabi created the world’s first known building code, and it was a performance-based code. A performance-based code is one that leaves discretion to the builder in regard to means. Compliance is judged on a set of performance criteria such as a specific load capacity for a load bearing structure.

Hammurabi’s Code dictated the performance standard that the final product of a builder shall not fall. Hammurabi’s Code, § 229. As simple as this concept may now seem, it captures the essence of performance-based design. As low as Hammurabi’s threshold may have been, failure to achieve compliance came at a great price. If the structure failed and caused death, the contractor would pay the ultimate price. Id.

Modern building codes have dropped the death penalty, thankfully, and have also trended towards prescriptive requirements. Prescriptive codes judge compliance by requiring certain materials and designs in order to achieve a standard deemed safe for construction. They tell the designer how to achieve the result, in contrast to the performance standard, which requires the designer to achieve a particular result but allows some freedom as to how to achieve it. Evaluating compliance with a prescriptive code is clear because the code itself dictates an easily measurable standard. For example, a building code may require joist spacing at certain prescribed distances.

This prescriptive element is designed to alleviate the need to test for load capacity. Determining compliance with such a provision is easily verified.

Many portions of prescriptive codes, however, have a performance-based fallback provision. These provisions allow for alternate designs if adequate assurance is given as to the adequacy. This assurance usually comes in the form of a mathematical model or confirmation by analytical methods. This, however, can be costly to obtain.

The primary criticism of prescriptive codes is that they deter innovation in design. As one commentator noted, prescriptive codes hampered the implementation of base isolation systems in earthquake-prone areas. See Greg C. Foliente, Developments in Performance-Based Building Codes and Standards, Vol. 50, Issue 7/8, Greg C. Forest Products Journal (2000). Some feel that performance-based codes, which are generally thought to encourage innovation, would have fostered this technology more quickly. Id.

There is a growing contingent of design professionals advocating for more performance-based codes. They argue that prescriptive codes, in addition to inhibiting innovation, are outdated due to advancements in design. The disconnect between prescriptive codes and practice is felt most keenly in the construction of large complex buildings. This may be because building codes are many times written with smaller construction projects in mind. Also, the price of innovation, as a percentage of total project costs, is less and its benefits are multiplied when leveraged in the design of a larger, more complex structure.

Despite this, there is no indication that governing bodies are eager to abandon their prescriptive codes. They are easy to enforce. Instead, what we are seeing is an increase in regulators allowance of performance-based alternatives, especially for complex projects. See Alternative Design Procedure (Performance-Based Design) for Seismic Analysis and Design of Tall Buildings Utilizing Complex Structural Systems, Los Angeles Building Department, Ref. No. ASCE 7, Section 12.6, Doc. No. P/BC 2017-123, Effective Jan. 1, 2017 (setting forth alternative design procedure for seismic analysis of alternative design for tall buildings).

Regulatory bodies have also layered performance-based incentives on top of prescriptive regulations. One example is found in LEED certification. The various degrees of LEED certification are driven almost exclusively by performance of the construction as it pertains to energy efficiency. Many local governments give tax incentives for achieving various levels of energy efficiency, which is the essence of LEED certification. The construction, however, is still subject to any controlling prescriptive codes.

Regardless of the structure of the governing building code, performance-based design can serve a role in construction contracts. Because many codes have the flexibility to allow regulators to consider alternate designs, performance-based standards can be an integral part of a contractual agreement. For example, performance-based design is found more frequently in design projects in earthquake or hurricane zones. Contractual performance-based standards can make clear that the structure must be able to survive a certain earthquake magnitude or wind speed.

An owner may not, however, want to leave all design features to be based solely on performance criteria. Aesthetics are often important. When drafting a performance-based contract, or when inserting performance-based provisions into a contract, careful drafting is required to achieve certainty. Performance-based goals should be determined prior to engaging a design team. See Sandra Henry et al.Taking a Performance-Based Approach to Building Procurement (2017) (finding many performance goals were introduced too late into projects so that they could not be achieved).

Once identified, the owner must determine how to create a definite and measurable standard to govern contract performance. All parties to the contract will likely agree that certainty as to the standard for compliance is beneficial. One concern with performance-based design is that the failure to achieve the standard may not be discovered for years after completion. The typical one year correction period for defects is not adequate to address this risk. Contractors, however, will be hesitant to extend a warranty in perpetuity, so a negotiated agreement must be had. Moreover, an owner needs to be cognizant of the applicable statutes of repose and limitations.

The owner should require the design team and contractor to gain approval for any alternate designs (to prescriptive requirements). The owner may also want to control certain aesthetic features. However, an agreement can integrate specific design features demanded by the owner while leaving discretion to the design team on other features. Early and frequent communication with the design team is paramount to achieving success.

Performance-based design is enjoying a modern resurgence due to its capacity to foster innovation. Hammurabi would be pleased. Nonetheless, to avoid pitfalls, be sure to plan carefully before engaging the design team and prepare an agreement with the proper allocation of responsibilities and risks, negotiated warranties and a clear standard of compliance.

How Architects Are Fighting For Gender-Neutral Bathrooms

Meg Miller | Fastco Design | September 6, 2016

On July 8, Massachusetts passed into law a bill that protects transgender people from discrimination in public places, including sports arenas, gas stations, movie theaters, and malls. For LGBT advocates, #TransBillMA was a victorious end to a fight that had lasted since 2007, when the first of several similar bills failed to pass. Maxwell Ng, an architect at DiMella Shaffer and the steering committee chair for Massachusetts Transgender Political Coalition, says he and the MTPC have been waiting even longer—since 1997, which marked the passage of a bill that protects transgender people against discrimination in housing, employment, and receiving credit from banks.

Yet that older law stopped just short of extending to public spaces. The main reason for the holdup? The public restroom—the same issue that has incited a civil liberties battle nationwide.


When the new law is enacted in October, Massachusetts will join nearly 20 other states that prohibit gender discrimination in all public spaces, including bathrooms. In May, the Obama administration ordered all U.S. public schools to allow transgender students access to the bathroom of their choice. But other states, like North Carolina and Texas, are fighting back with legislation that requires individuals to use toilets based on the sex stated on their birth certificates.

The public restroom has become a symbol of change—or resistance, depending on which side of the debate you ask—at both a societal level and a legislative level. For transgender rights to progress, social norms need to shift and laws need to hold people who discriminate by gender accountable. But because this civil rights debate is centered around a public space, it’s also a design issue. Thoughtful design can transform a public restroom into a space that is equitable and comfortable for all, and subtly change social attitudes in the process.

Yet designing these more equitable restrooms is often a challenge for a reason that has nothing to do with the debates of today: building code.

[Photo: © Elizabeth Felicella/Esto]


When the Massachusetts bill passed earlier this summer, Ng was celebrating with other LGBT advocates at a party at Google’s Boston offices.

He found himself admiring the design of the bathrooms there: a series of fixed, single stall bathrooms that each contain a toilet, sink changing table, and lock. “Regardless of who you are and what you were born with”—or whether you are a parent with a young child—”you can use any bathroom,” he says. “It’s the definition of Universal Design: Each is outfitted with the exact same thing.”

That design solution seems simple enough, and many architects are already working to create bathrooms that are private, safe, and accessible for all genders, so that how you identify is a nonissue when you go to do one of the most basic and natural things in the world. But doing so means dealing with rules and regulations as outdated and frustrating as the bureaucracy that advocates come up against on the legislative side. The practical barrier to gender-inclusive restrooms? It basically boils down to building code.

Restrooms are the only category of public spaces that are still segregated by gender, and that can be traced back to the 1880s, when women were entering the workforce. In 1887, state laws (starting with Massachusetts) began requiring sex-segregated restrooms to ensure that women would have their own restrooms. (Around the same time, state laws were being passed to prohibit only offering restrooms to men.)

“At the time it was meant to be a progressive boundary-setting thing to make women feel welcome in the workforce,” says S. Surface, an architect and activist based in Seattle. Gender segregation was written into building codes, which is why many states’ plumbing codes still require separate toilet fixtures for men and women. Per the code, which varies city to city, architects calculate the number of toilets needed for each gender via a formula that factors in the use of the building and the number of men and women occupants.

This rule, too, had good intentions. Plumbing codes that take into account how many women will be using the facility were written that way in an effort to cut down on long lines and wait times. But as societal roles for men and women changed, and as a broadened understanding of gender fluidity and identity has taken hold, the original intention to remedy inequity has been subverted.

Instead, because public bathrooms need to be designated male or female, it forces transgender and nonconforming individuals to choose between the two, sometimes leading them into uncomfortable or unsafe situations. The code leaves architects with a choice, too: take the easy route and design single and multi-occupancy bathrooms labeled “male” or “female,” or design around the code—the latter of which often takes more creativity and resources.

[Photo: courtesy Perkins + Will]


Building codes are dictated by municipality. Depending on the code, some architects take advantage of loopholes or create clever work-arounds; others just risk getting fined. Others still will ask the city for a variance, which is often a long, Kafka-esque process.

That’s what Congregation Beit Simchat Torah, a Jewish synagogue in New York City known for its dedication to social justice and LGBT rights, did when it moved to a new space earlier this year. The N.Y.C.-based design firm Architecture Research Office, which designed the new building, was granted permission to build an all-gendered restroom after a process that lasted four months.

ARO’s Stephen Cassell, who also designed many public restrooms for the New York City Parks Department, says that designing public restrooms with safety in mind typically means making sure there are good sight lines and a lot of light. Without the code restrictions at the CBST synagogue, however, he designed single-occupancy bathrooms with soundproof, fully enclosed stalls that have mirrors inside. Outside of the stalls, there are shared sinks and a large mirror, similar to most multiple-occupancy bathrooms.

Building private, single-occupancy stalls laid out around a common area with a sink is a solution that many architects trying to design equitable gender-neutral bathrooms have landed upon. Matt Nardella, founder of the Chicago-based architecture firm Moss, wrote a blog post about that model, using it for both restaurants and mixed-use buildings. He says that it solves for the problem of privacy and comfort without using up too much of the floor plate (space is often cited as reason for choosing multi-person, “gang”-style bathrooms over single-occupancy units). “In addition, the single-occupancy bathrooms cost less money because you don’t have to make a whole multi-occupancy bathroom out of resistant materials,” he says. “Those partitions have to be so durable that regular walls and tiles are actually cheaper.”

“We call it the Ally McBeal solution,” says David Cordell, an architect at the New York office of Perkins+Will, referring to the unisex bathroom in the show’s law firm that was frequently used as a plot device. When designing gender neutral restrooms for the LGBT and HIV-focused Whitman-Walker Health Center in Washington, D.C., Cordell was faced with a building that already had multi-occupancy restrooms designated male and female. It also had a tight floor plan.

Cordell’s plan, much like Cassell’s at CBST, was to work with the multi-occupancy bathroom already in place, adding in stalls with doors that extend from floor to ceiling and a common sink. The design doesn’t take up any more of the floor plate than before, and it’s an example of how small tweaks can make a difference—in this case, by affording people privacy without making them choose “male” or “female.”

[Photo: courtesy of QSpace]


Creatively working around the code might be a fine temporary solution for architects who are socially minded. But as long as the plumbing code stays the same, it’s easy for others to default to it—and reinforce the status quo. “The common response from developers is ‘we’ve always done it this way,'” says architect Lauren Johnson.

Johnston, a recent graduate of Columbia Architecture School, recently cofounded the LGBT architecture organization QSpace, which will be run out of the New Museum’s New Inc incubator this year, with fellow student Ryan Day. When I talked to them last month, Johnson and Day had just gotten back from a research trip in Durham, North Carolina, where they spoke with architects, business owners, and LGBT advocates about the effects of North Carolina’s House Bill 2 (HB2) law, which requires transgender people use the bathroom that corresponds with the sex on their birth certificate.

Day says he came back from the trip with two missions in mind: first, to educate architecture students about LGBT rights and second, to change building codes. “We have the skills as architects to speak to people who work within the city and ask for new solutions, and to show them renderings that demonstrate how simple it could be [to design gender-neutral restrooms],” says Day. “We need to make them see the other option.”

Even though municipalities have their own separate codes, there is also an international building code that sets the precedent for the code nationwide. It is decided by the International Code Council, an industry organization that holds an summit every three years to re-evaluate the code. The last deadline to submit proposals to change the code was January 2016, and the changes that were accepted to be updated will be posted in December 2016. That means the next chance to submit won’t be until 2019.

And because these codes are put into place for health and safety reasons, they aren’t easy to change. Both S. Surface and Maxwell Ng say that all of the proposals that called for more gender-neutral code were declined. They looked through the failed proposals and called the groups who submitted them to see why they were rejected. “Some were declined because it was not written in ‘enforceable’ language,” says Surface. “One got a comment that said something like ‘our jury showed it to a woman and she said she would be uncomfortable.'” Surface and Ng are exploring ways to go about changing the code the next time around, but they say it relies on the collaboration of LGBT advocates, lawyers, and architects to get it right.

“Architects have been missing from this fight,” Ng says. “I do genuinely see it as a design issue. And I genuinely believe that anything can be solved with good design. Architects love a good challenge.”

Contractors can be Liable for Following Owners’ Directives

Drew W. Colby and James Heffernan | Partridge Snow & Hahn LLP | January 2016

In Downey v. Chutehall Construction Co.  (Lawyers Weekly No. 11-001-16), the Massachusetts Appeals Court ruled a contractor can be liable for violating building codes despite the fact that the party suing it directed the contractor to perform the non-compliant work.

The contractor argued that the owner told it the roof had only one layer of roofing materials on it and directed the contractor to install another layer of roofing material directly on top of the existing roofing materials.  The contractor knew the building code prohibited it from installing more than two layers.  However, relying upon the owner’s assurance that only one layer existed, the contractor followed the owner’s directive and installed another layer of roofing material.

A few years later, the owner hired another contractor to perform HVAC work.  This contractor discovered the roof actually had four layers of roofing material and was leaking. The owner then hired a second roofing contractor to strip the roofing material, repair the leak, and install new roofing material.  The owner sued the first roofing contractor for those costs.

The question before the Court was whether the owner waived its statutory right to damages against the contractor by directing the contractor to perform the non-compliant work.  The Court answered “no”.  Specifically, Massachusetts has a statutory scheme that permits the recovery of damages against contractors who violate building codes.  The Court ruled a statutory right may not be waived if the waiver would undermine the public policy underlying the statute.  The building code and statutory rights relating to it were designed to ensure public safety, health and welfare.  The Court found that permitting a waiver of owner rights to compel a contractor to comply with the building code would permit and even encourage endangering future owners, first responders, and the public in general and, consequently, would undermine the statute.  As a result, despite being directed by the owner to perform the non-compliant work, the contractor was liable to the owner for the consequences of such non-compliant work.

In summary, contractors are obligated to perform their work in accordance with the building codes.  A failure to do so, even when directed by third parties, may result in contractors being exposed to liability.

For more on this article

Building Codes – 7 Violations You Should Definitely Avoid

​You’re off and running with your DIY project, looking to become a home improvement hero and saving some cash in the process. Sure, you may know your way around power tools, but you could be the dumbest guy in the neighborhood.

The trap? Building codes, those rules and regulations that govern everything from lumber spans to the clearance in front of a toilet. If you don’t comply with building codes, you may be on the hook for fines and an expensive tear-out and redo of your project.

Heck, you say. Nobody is going to notice a little bathroom renovation going on in the back of your house. That may be true, but the real intent of building codes is to make sure your house is safe and healthy. Not conforming with codes could even cost you when you decide to sell your home—a sharp-eyed inspector undoubtedly will spot violations that shrink your asking price or tank a potential sale altogether.

That’s one big advantage that a building contractor has over an ambitious DIYer. A contractor needs to keep up with building codes that change from state to state and from town to town.

But if you’re determined to forge ahead and on your own (we know you are!), watch out for these common code no-nos that trip up many a DIYer.


Ducking Permits

You may think not applying for a building permit helps shave costs and sidesteps all the bureaucratic BS, and you’d be right—and wrong. Skipping permits means you won’t have access to your local building inspector, somebody who knows all the codes and can ensure your project is in compliance. That translates to the utmost safety for you and your family, and avoids code violation stumbling blocks when it comes time to sell your house.

“By far the biggest mistake do-it-yourselfers make is not getting the right permits,” says Rich Nolan, a structural engineer and owner of Nolan Engineering in Burt Hills, N.Y., a firm that specializes in home inspections. “You may think you can do without permits, but that can really come to haunt you in the end.”

Want more motivation? Your insurance company may not cover your loss if it was due to improper installation or construction.

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