Earlier this year, my colleague Eric Grasberger authored a blog post about a crane collapse in Lower Manhattan. In that post, he mentioned that neighboring landowners may seek to prevent cranes from intruding into the airspace above their property. Contractors and owners alike are often surprised to learn that a crane swinging over adjacent property may infringe upon the adjacent owner’s property rights.
Although there are potential technical solutions—such as using a crane with a luffing jib—project participants would be better served to address the issue before a crane is erected. Obtaining a swingway easement from an adjacent property owner is the typical approach. However, the owner and/or contractor may ask: Who is responsible for obtaining (and paying for) the swingway easement?
In some cases, that question may be answered by the parties’ contract. For example, Section 2.2.2 of the AIA A201 requires the owner to obtain such easements, by stating that the owner is responsible for obtaining “easements . . . required for construction . . . of permanent structures.” ConsensusDocs 200 (Paragraph 4.4) and DBIA 535 (Sections 22.214.171.124 and 3.2.2) include similar provisions. In contrast, EJCDC C-700 Section 5.02.A.1 states that the contractor must confine its construction equipment to the project site “and adjacent areas that Contractor has arranged to use through construction easements or otherwise . . . .”
Of course, these provisions could be modified by the parties during negotiations. For example, an owner may want the contractor to obtain any swingway easements. After all, determining how materials and equipment will be hoisted into place generally is considered a means or method of construction for which the contractor is responsible. However, there may be valid reasons why an owner would want to obtain the easement. These include avoiding markup on easement costs and managing relations with neighboring property owners.
Regardless of how the owner and contractor may divvy up this responsibility, it is always better to address the issue before the neighbors complain—and seek to enforce their rights to prevent a crane from intruding into their airspace.