New York City buildings greater than six stories tall are subject to the Façade Inspection and Safety Program (FISP). The safety of these buildings must be periodically inspected by a Qualified Exterior Wall Inspector who then submits a report to the New York City Department of Buildings designating the building as either Safe, Unsafe, or SWARMP, which stands for Safe With a Repair and Maintenance Program.
While the safe and unsafe designations are fairly straightforward, SWARMP designations are the least understood. If your building is classified as SWARMP, it means that it is not unsafe or hazardous, but it does need repairs. To avoid an unsafe designation and possible fines, it is essential to complete all required repairs in the timeframe established in the report.
NYC's Façade Inspection and Safety Program
Pursuant to NYC Local Law 11 of 1998 and Facade Rule 1RCNY 103-04, the New York City Department of Buildings (DOB) requires periodic examinations conducted every five years to review the exterior of a building to determine whether the exterior walls (facades) and the appurtenances are safe. New York City enacted the law to prevent injuries and deaths caused by falling debris from building facades.
Mandatory Inspections by a QEWI
FISP inspections must be conducted by an architect or engineer who is authorized to serve as a Qualified Exterior Wall Inspector (QEWI) by the DOB. Local Law 11 works on a five-year cycle, and it is the building owner's responsibility to retain a qualified QEWI when an inspection is due.
The QEWI must design an inspection program for the specific building to be inspected. Factors taken into consideration include the type of construction of the building's envelope, age of the material components, the façade's specific exposure to environmental conditions, and the presence of specific details and appurtenances. When conducting an inspection, the QEWI will evaluate a wide range of conditions that may impact the safety of the building's facade, such as splitting or fracturing of terra cotta on buildings, cracking of masonry and brick work in brick faced buildings, mortar and other joint materials, loosening or corrosion of metal anchors and supports, water entry or flow within cavities, mineral build-up, coping materials, and movement of lintel/shelf angles.
FISP Designations
Following an inspection, buildings are categorized as one of the following conditions:
- Safe condition: A condition of a building wall, any appurtenances thereto or any part thereof not requiring repair or maintenance to sustain the structural integrity of the exterior of the building and that will not become unsafe during the next five years.
- Safe with a repair and maintenance program (SWARMP): A condition of a building wall, any appurtenances thereto or any part thereof that is safe at the time of inspection, but requires repairs or maintenance during the next five years, but not less than one year, in order to prevent its deterioration into an unsafe condition during that five-year period.
- Unsafe condition: A condition of a building wall, any appurtenances thereto, or any part thereof that is hazardous to persons or property and requires repair within one (1) year of completion of critical examinations. In addition, any condition that was reported as SWARMP in a previous report and that is not corrected at the time of the current inspection must be reported as an unsafe condition.
Resolving a SWARMP Designation
Following a SWARMP designation, the QEWI will notify the owner and the DOB. The owner of the building is then responsible for ensuring that the conditions described in the examination report as SWARMP are corrected and all actions recommended by the QEWI are completed within the time frame recommended set forth in the report. Your report will state the date by which the work must be performed to prevent the conditions from becoming unsafe. Once all required repairs are completed, the QEWI will file an amended report to change the building's status to "Safe."
Addressing the issues that caused your building to be SWARMP is imperative to avoid violations and prevent it from being classified as "Unsafe." An owner who fails to correct a SWARMP condition reported as requiring repair in the previous report filing cycle and subsequently files the condition as "Unsafe" may be liable for a civil penalty of two thousand dollars ($2,000).
Additionally, it is imperative to note that Condominiums and Cooperatives that contain either a SWARMP designation or an Unsafe designation, generally will pose an issue to those seeking financing on purchase transactions in New York City, as many lenders will not approve buildings with these designations, subject to very few exceptions.
Benefits of Partnering With Experienced Professionals
Navigating New York's City maze of building and land use regulations can be daunting. Because mistakes can also result in project delays, fines, and other unforeseen liability, we strongly encourage property owners to partner with experienced legal professionals.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
