How to Respond to DOB's Increased Balcony Maintenance Scrutiny

In the June 2010 issue, we wrote about the Department of Building's (DOB) increased attention to apartment balconies in New York City after the March death of a tenant who fell from a faulty 24th-floor terrace on East 39th Street. At the time of the announcement, DOB had declared the balconies of 16 city apartment buildings to be off-limits and that hundreds more lacked proper inspections (“In the News: DOB Appoints New Enforcement Official, Initiates Sweeping Balcony Inspections,” Insider, June 2010, p. 1).

Since the DOB announcement of stepped-up balcony inspections, the Insider has noticed an increase in recent Environmental Control Board (ECB) rulings dealing with DOB violations for unsafe balconies. In light of the increased scrutiny, we'll give you some guidance on maintaining your balconies and highlight a successful appeal by an owner of a DOB violation notice for an unsafe balcony.

Inspect Balcony Floors, Railings for Warning Signs

According to DOB, inspection teams have been conducting street-level examinations, with inspectors and engineers examining balconies with binoculars and entering buildings for physical inspections. They have found loose railings, crumbling concrete, and unsecured railing posts.

If your apartments have balconies, you should inspect their railings regularly and keep them in good condition. Anything you or your staff notices, a DOB inspector will notice with binoculars or upon closer inspection. Even if an inspector bypasses your building, it's good to check the status of your balconies regularly. A defective railing might result in an injury to a tenant or guest. And you could be sued for negligently failing to maintain the railing in a safe condition and be held liable for the injury.

According to Paul Crosby, a maintenance operations expert, you should start your inspection where the railing is attached to the wall of the building. Make sure the bolts that attach the railing to the wall are solid and show no signs of rust. Also check any attachments along the floor of the balcony. Then give the railing a good hard shake and make sure it doesn't move.

If you have wrought-iron railings, check for rust. Look carefully at the entire length of the railing, especially at places where the iron has been welded, such as where it meets spacers or the wall. If you have wooden railings, check for rot along the entire length. Rotting tends to occur where water seeps into the wood, so check where nails or screws penetrate it. Both iron and wooden railings can deteriorate from the inside out.

To check for hidden problems in wooden railings, knock on them. A hollow sound indicates that the wood may be weak inside. It might be rotten, or termites or carpenter ants may have invaded it. If you have iron railings, try to bend or squeeze the metal. If it gives at all, replace it.

Also, check the floors when you check the railing. With wooden floors, check for rotting, especially if the tenant has put indoor/outdoor carpeting on it. Concrete floors may “spall,” or flake. This is a sign of a weakened floor. This usually happens to the underside of the floor, so check from the apartment below. If you notice any sign of a weakened floor, immediately retain a professional engineer to inspect and possibly conduct stress tests on the floor.

Violation Notices Require Specificity

It may be the case that your building balconies show no sign of defective railings or floors, yet you have received a notice of violation (NOV) from DOB. Under these circumstances, unless DOB has conducted further inspections that show there's a problem, you should be able to defeat this NOV.

In a few recent cases, a violation was issued after a contractor hired to perform work at a building had a professional engineer evaluate the structural integrity of the top-floor balcony. The engineer found that the balcony was unsafe and didn't meet the law's live-load requirements. The contractor submitted the engineer's report to DOB, and DOB became concerned because the contractor who had constructed the balcony had also constructed all of the balconies on the adjoining buildings.

As a result, DOB inspectors issued NOVs to the owners of the adjoining buildings for failing to provide safe occupancy of building balconies. According to the inspecting officer, the purpose of issuing the NOVs was to have the adjacent owners hire engineers to submit a report to DOB showing that all the balconies were safe.

On appeal of one of the NOVs, ECB ruled that the NOV must give an owner enough information about the violation so that the owner can defend himself against it. The owner argued that the violation notice was vague and didn't show any noncompliance with the law. ECB concluded that DOB failed to prove that the live-load capacity of the balcony was noncompliant. DOB submitted no proof showing what the live-load requirements were or how the owner violated them [436 West 23rd St. Tenants, September 2010].