When The Party Is Over For A Party Wall

A recent case from Supreme Court, New York County, brings clarity to a conflict that can arise when a building that shares a party wall is demolished and the site is redeveloped without relying on the party wall.

In 145 W. 21st Realty LLC v. First West 21st Street LLC, 653241/12, NYLJ 1202792788020 (Sup. Ct. N.Y. Co. July 26, 2017), Justice Kelly O’Neill Levy had to decide whether a new building that extends above the party wall that it had formerly shared with the adjoining building, could also be built over part of the party wall, thus preventing neighbor from ever being able to exercise its right to extend the party wall up in the future. The court followed earlier cases that favor modern construction practices, and allowed the cantilever of the new structure over the old, holding that the obligations to a party-wall neighbor do not extend to the space above the party wall.

A party wall is a single wall constructed along a property line that is used by the two adjoining buildings to provide structural support for their beams.  Typically, one half of the party wall sits on each owner’s property.  Each owner owns the half of the party wall on its property, and has an easement on the other half of the wall.  Brooks v. Curtis, 50 N.Y. 639, 642-3 (1873).

Party walls were once common in New York City because they save precious inches in a narrow urban lot, by reducing the need for thick, load-bearing walls.  Why build two independent walls next to each other when one would suffice?  But the shared support means the two buildings are structurally joined, and the resulting shared ownership of the party wall has generated litigation going back to the nineteenth century.

The party wall is intended for the mutual convenience of both property owners, and neither may use it to the detriment of the other.  Negus v Becker, 143 N.Y. 303 (1894).  Importantly for this case, either property owner may extend the height of the wall, and use it to support an addition to its building, if the wall is strong enough to support the added weight, and if the extension can also be used by the neighbor to increase the height of its building.  Varriale v. Brooklyn Edison Co., Inc. 252 N.Y. 22, 224 (1929).

In 145 W. 21st Realty LLC, defendant demolished the building on its property that had relied on the party wall, and then constructed a much taller building with an independent wall.  However, once the new building reached the height of the old party wall, it cantilevered out over the wall (seeking a few more precious inches), but only up to the property line.  Critically, the new wall did not rest on the party wall or depend on it for support, and did not extend across the property line.

The neighbor in 145 W. 21st Realty LLC was unhappy that it could no longer add to the height of its building by extending the party wall, and brought an action that included causes of action in conversion, encroachment, trespass and negligence, among other things.  Both parties moved for partial summary judgment.

The court in 145 W. 21st Realty LLC sided with the builder of the new building, and dismissed the neighbor’s causes of action.  The basis for the court’s decision was encapsulated in a quote from a much earlier case that it relied on, Wechsler v. Elbeco Realty Corp., 119 Misc. 178, 181 (Sup. Ct. Kings Co. 1922) aff’d 213 App. Div. 820 (1st Dep’t 1925):

[T]he owner of one-half of a one-story party wall has [no] right to prevent his neighbor from utilizing his property rights in the open space above . . . In view of modern building methods, the existence of a party wall would no longer be a mutual benefit [if plaintiff’s position was adopted] but as much of a burden and incumbrance as though there were a perpetual covenant to rebuild.

As early as 1922, the Wechsler decision clearly favored the owner using “modern building methods” of independent walls over the owner hoping to expand its property using the old-fashioned party wall.  The Wechsler court declined to allow an owner’s hypothetical plan to expand a party wall upward at some point in the future to prevent a neighbor’s actual construction of a wall that would block that expansion, as long as it remained entirely within the property line, and did not rest on the party wall.  (The court distinguished the case American Ry. Express Co. v. Lassen Realty Co., 205 App. Div. 238 (1st Dep’t 1923), in which the new, taller building both rested on the party wall and extended over the property line, thus impermisibly interfering with the neighbor’s rights, because it did not permit the neighbor to rely on the extended wall as well.)

The holding of the court in 145 W. 21st Realty LLC, following Wechsler and other cases, confirms that courts favor allowing an owner to abandon the party wall and use its property, including the air space above the party wall, as its sees fit.  An owner whose building still relies on a party wall for support and who plans to expand the party wall upwards someday, has no legal right to prevent its neighbor from blocking its ability to carry out those plans.