Is It Possible for Me to Demand a Sidewalk for My Building?

published Sep 8, 2020
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Key Question lead art about side walk
Credit: Photos: Shutterstock, Graphic: Apartment Therapy

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Dear Apartment Therapy,

Please help! I bought into a four-unit condo building about five months ago. I took a look at the plats and plans section of the public offering statement, and the site plan shows a few things: the property line, a concrete pad for a dumpster, and a sidewalk along the building that leads to the designated parking area—the last of which the building never installed. Is this sidewalk legally required to be installed as part of the building, since it was outlined in those plans? I want to know if we, as the homeowners’ association, can require the builders to “finish” the job. I just want a sidewalk!

Walking the Line

Dear Walking the Line,

I have to tell you about the image that popped into my head before I answer your question. This may seem strange, but after reading your message I was transported back to my childhood bedroom, my nose buried in Shel Silverstein’s “Where the Sidewalk Ends“. I pictured the sidewalk coming to a steep dropoff right in front of your building, you and your fellow HOA members peering over it, wondering if it’ll ever be completed.

Unlike what’s shown on the cover of this children’s book, there is likely no abyss next to your building’s parking area. I imagine you’ve just got some trampled grass. But I digress. Back to the question: Do we have a couple of sidewalk sidesteppers on our hands, or what?

I have good news for you, Walking the Line. I think there’s a chance you can get your sidewalk.

First, for those who don’t know, a public offering statement is a document that builders of a new condominium must provide to buyers. Most public offering statements detail how the building is managed, include the covenants, conditions, and restrictions for the neighborhood, and offer disclosures about insurance, budgets, and construction for the condo, though the specifics of public offering statements can vary from state to state. Plats are official maps created by land surveyors that show the divisions of a land parcel, while the plans, or site plans, show the property’s footprint from a bird’s eye view.

If you’re seeing a sidewalk on your site plan but no chunk of concrete in real life, that’s a problem. It means the builder could be committing a breach of contract, according to Ken Jacobs, an attorney with firm Smith Buss & Jacobs, which specializes in real estate, co-op, and condo law.

“The offering plan itself is a contract,” he explains. “If the sponsor did not fulfill the obligations under the operating plan, including building a sidewalk, then the owner could start an action themselves.”

I’ll pump the breaks for a second. There’s no need to file a lawsuit just yet. 

“To me, this is the type of thing the attorney general’s offices would get involved in,” Jacobs says. “The AG’s office would refer to their engineers, who’d come out and verify, then intervene to persuade them to fulfill the plan. Condo offerings are securities—the failure to do what you’re supposed to do under the plan could constitute securities fraud.”

Heading to the AG’s office in your state is a good way to avoid loads of legal fees, too. Lawsuits are expensive! Most four-unit condo buildings don’t have a lot of resources, explains Jacobs, so the AG’s office will look to help.

Of course, consulting the attorney general isn’t the only avenue here—especially if there are more details in the public offering statement that weren’t mentioned in your question. But something you could try even before you go to the state is talking to the builder. Now that you know the builder technically needs to fulfill their contract, it’s worth simply asking them to complete the sidewalk (without you having to pay a dime).

“Take further action depending on what his response is,” Jacobs says. “If his response is, ‘I’ll do it in the spring, the weather got too cold,’ OK. If he evades, ducks, bobs, and weaves, that’s when the owner can contact the AG’s office.”

He points out that many attorney general offices are understaffed and overworked. In other words, don’t count on a speedy resolution.

There could be other courses of action, too. Some states have an ombudsman you could contact to intervene on behalf of the condo and try to bring the parties together, Jacobs says. Other states have mandatory mediation or arbitration. The remedies differ depending on where your building is located.

The bottom line? The public offering statement is a formal contract between the builder and you, as unit owners. So if the sponsor—the builder, in this case—breached its contract, you may have recourse.