The Owner's Role

• Author: Lorence H. Slutzky and Dennis J. Powers
• Pages: 35-55

The O wner ’s Role 35

3.0 over view

To initiate a project, the owner must establish site and building requirements

and identify potential project locations that ful ll those requirements. The

owner must investigate the site’s availability, access to the site for construc-

tion, any restrictions imposed by the title, environmental issues, and regulato-

ry restrictions imposed by local and other governmental entities. This relevant

site information must be provided to the architect and contractor. Commence-

ment of construction is typically coordinated with the requirements of regula-

tory authorities and the issuance of the necessary permits. If the owner wishes

to  nance the project, the owner and the project must qualify for a construc-

tion loan. In conjunction with these activities, the owner also must consider, at

least in the northern latitudes, the timing of the initial phases of construction

that are affected by weather.

3.0 Prov idin g the Bu ildi ng s ite

Selection of a building site requires more than just an evaluation of the loca-

tion for the building’s ultimate use. Other factors must be reviewed and evalu-

ated, such as access to the site for construction, soil conditions, zoning re-

strictions, the availability of utilities, environmental issues, the existence of

3

The Owner’s Role

LORE NCE H. SLUTZKY AND DENNIS J. POWERS

C H A P T E R

35

36 C ON S T R U C T IO N L AW

easements over the property, and covenants that follow title that restrict what

can be built. All of these factors must be considered in evaluating a building

site and included in the design and construction equation.

A. Access to the Buildi ng Site

Prior to the owner issuing the notice to proceed to the contractor, access to the

building site must be secured for the type of construction to be undertaken.

Unless the responsibility to obtain access to the site is expressly delegated to

the contractor, site access is the owner’s responsibility. The owner owes to the

contractor an implied obligation to provide unencumbered site access.1 The

obligation to provide site access remains in effect throughout the course of

the contractor’s performance, and can be breached even if the owner is not

directly responsible for the contractor’s inability to gain access to the project

site.2 If access to the work area is impeded by work of another contractor, the

owner likely will be deemed to have breached its implied obligation—and in

some jurisdictions, an implied warranty—to provide timely and adequate site

access to the obstructed contractor.

Ensuring that a contractor has adequate site access may require a con-

struction easement agreement with adjacent landowners that permit the use of

the adjacent property for the limited purpose of constructing the building. A

failure by an owner to procure the necessary rights of way and easements can

lead to liability to the contractor for the delay if the absence of rights of way

and easements prevent the contractor from accessing the site. For example, the

construction may require an easement to allow the boom of a crane to oper-

ate over an adjacent property because title to property in most jurisdictions

includes the air rights above the property. In other jurisdictions, a property

owner’s air rights only may extend to the space used by the property owner

and, thus, such an easement will not be required.3 Easements over adjoining

property also may be needed for access to the construction site. Some jurisdic-

tions provide a statutory mechanism for an owner to seek court approval to

enter adjoining land for construction purposes.4 Industry form contracts gen-

1. See Carter v. State, 259 Ga. App. 798, 578 S.E.2d 508 (2003).

2. Hoffman v. United States, 166 Ct. Cl. 39, 340 F.2d 645 (1964).

3. Geller v. Brownstone Condominium Ass’n, 82 Ill. App. 3d 334, 402 N.E.2d 807 (1985),

adjoining property’s air rights only extend to the space used by the adjoining property owner.

4. See, e.g., Illinois’ Entry on Adjoining Land to Accomplish Repair Act, 765 ILCS 125/0.01,

and New York’s Access to Adjoining Property to Make Improvements or Repairs Act, N.Y. Real

Prop. Actions and Proceedings Law § 881.