Over the years we have encountered many New York homeowners who have become “bogged down” with swimming pool issues. Whether it is a contractor dispute, zoning variance, Contract of Sale issue or a related issue, swimming pools seem to get many homeowners into “hot water.” In this article we attempt to identify some of these issues and explain how attorneys can assist in resolving them before they “drain” your time and finances.
Avoid Construction Disputes with a Clear Contract
Swimming pool projects, like other home renovations, have a tendency to go over budget and take longer than anticipated to complete. All too often homeowners sign the contract provided by the pool company without advice of counsel. An attorney can help clarify budget and timing limitations, clarify the circumstances under which the downpayment is refunded, and bolster important insurance and indemnification clauses to insulate the homeowner from potential liability, e.g. in the event of an unfortunate construction accident.
Avoid Permitting Problems with a Zoning Analysis
Homeowners often rely on design professionals hired by pool companies for zoning advise. In New York, however, each municipality has its own unique zoning code. The definition of “impervious coverage” in one Town may be different than the next. The rear yard setback may also differ. Other considerations such as potential future projects, e.g. deck expansions and retaining wall construction, may also impact zoning calculations. Failure to comply with municipal zoning requirements can result in the inability to obtain a Certificate of Compliance (CC). Failure to obtain a CC can result in fines and/or impact the marketability of a home. Therefore, we recommend consulting with an experienced land use attorney before embarking on any exterior home improvement project.
Avoid Wetlands Problems by Consulting a Land Use Attorney
It is not always clear whether a swimming pool requires a wetlands permit. Anecdotally, we were recently retained to represent a homeowner who had been told they needed a variance from the Zoning Board of Appeals and a wetland permit from the Planning Board in the Village of Scarsdale. After we reviewed the zoning code and consulted with a respected local wetland biologist, we successfully argued that neither a variance nor a wetland permit were required.
In a similar situation, we were retained by a homeowner in the Town of Bedford who had obtained a wetland permit before consulting with our office only to find out that the conditions of the permit (the landscape mitigation plan in particular) were incredibly onerous, unnecessary, and expensive.
Having an experienced land use attorney get involved early in a project can help save a lot of time and expense.
Help Ensure a Smooth Closing by Addressing Swimming Pool Issues in a Contract of Sale
In some cases, Contracts of Sale can be conditioned on a swimming pool being approved, constructed, or repaired before closing.
We were recently retained by a seller who had agreed to obtain a swimming pool permit as a condition of closing. The application process with the local municipality had stalled pending a determination as to whether the swimming pool also required a permit from the New York State Department of Environmental Conservation (DEC). Fortunately for the seller we were able to ascertain from a respected local wetland biologist that the locally designated wetland was disconnected from the nearby New York State designated wetlands and, therefore, no additional permits were required from the DEC. As such, we were able to close on the sale without further delay.
Another common scenario is that the swimming pool requires a repair prior to the closing and the parties disagree regarding the necessity and/or scope of the repair. We have successfully “navigated” these issues as well in the past.
Avoid a Landlord/Tenant Dispute by Drafting a Clear Lease
Swimming pools are a fairly common feature on high end residential leases in Westchester County, New York. When we are retained in connection with a residential lease with a swimming pool, we aim to specify the parties’ respective rights and obligations. Some tenants have unique requirements, e.g. to have the swimming pool remain open late into the season. Some landlords are sensitive to the potential liability and request “beefed up” language to help manage that risk.
In sum, swimming pools can greatly increase the use and enjoyment and add value to a home. However, before diving into a swimming pool project, or negotiating a deal involving a swimming pool, it may be prudent to consult an experienced real estate attorney.
For more information on real estate issues pertaining to swimming pools, please contact us at (914) 338-8050 or send an e-mail to email@example.com. We look forward to hearing from you.
Betensky Law PLLC
118 N. Bedford Road, Suite 302
Mount Kisco, New York 10549
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