Kids have been playing in our parking lot and my board is concerned that they will hurt themselves and we will be liable. We have a very vague policy about our parking lot being for patrons to park at only and a couple signs that say patron parking only. We can update our policy to be more specific if need be but their thoughts are no policy on our end will protect us if someone gets hurt and says they didn't know our policy so we need a sign posted that makes it clear we don't expect kids to be riding bikes, go carts, etc in our parking lot.
Our treasurer thought maybe just a "no trespassing" sign would work.
Another Library Director I know said they have a sign that reads:
On Library Property"
Would something more specific like that be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?
The kids are often waiting until the library is closed and I'm no longer there before they start riding around on it so simply being vigilant telling them to leave is not going to work.
Thanks so much for any guidance you can offer.
Behold, the humble skateboarder: wheels spinning, scabby knees, and (if they have gotten over the fact that even when worn by Tony Hawk, it looks dorky) brain carefully protected by helmet, ready for action. Never has a humble sport posed more of a challenge to local governments, park designers, architects, and urban planners; lay down a relatively smooth surface, and there they are, ready to challenge both gravity and the rules governing property.
As a lawyer who studies how the law impacts what people do--and how we do it--I find skateboarding fascinating. Since at least the late 80's, in town meeting after town meeting, legal case after legal case, site design after site design, public authorities and property owners have attempted to control when and where people can skate (and bike, and rollerblade, and hang out while watching others do those things).
That we as a society often fail at such prohibitions and dissuasions is shown by the magnitude of letters-to-the-editor and news reporting regarding parking lot/ramp/sidewalk incident and injury. It has also spawned an array of dangerous and off-putting site design, such as metal rivets on walkways and spikes on hardscaping.
Of course, this question is not about skateboards, but rather, about signage effective enough to reduce risky activity and to avoid liability while keeping library premises welcoming to everybody.
For any library, museum, or other public cultural institution wrestling with this issue, this poses a conundrum. The mission of your institution is to be accessible, inclusive, and to serve your community. Yet at the same time, the promotion of a safe parking lot and grounds during open hours is critical...while after-hours promotion of safety is just as important (especially if you offer 24-hour Wi-Fi that is accessible in the parking lot and grounds).
How can an institution achieve this balance?
For an institution confronted by this issue, there is a five-step process that must be conducted:
STEP ONE: Confirm who legally owns and/or controls the parking lot and grounds. Does your library own the lot, or is it rented and subject to the terms of a lease? What you learn during this step will show who has to solve this issue (with a landlord, collaboration will be required).
STEP TWO: What insurance covers the lot, and what types of incidents are covered? This step will provide insight into how your institution is set up to manage the risks you've identified.
STEP THREE: What is the purpose of the parking lot and grounds? What functions do those resources serve? Hopefully, the uses are already limited to only things that serve the mission and plan of service of the library. However, in the case of a lease or shared premises, that might not be the case.
STEP FOUR: Confirm and harmonize everything from the first three steps.
This fourth step sounds simple, but it can take many forms.
NOTE: For these reasons (and more), whenever, possible, "Step Four" should be done with a lawyer.
STEP FIVE: Only after completing Steps "One" through "FOUR" should a library board approve a signage plan.
Why these steps? Because the details they draw out will help your library determine the final text of the signage, whittling it down from many permutations. For instance:
In addition to helping your library check all the boxes (ownership, risk management, mission, messaging), I advise this approach because it will position your library to give your signage some personality...something that projects the library’s values and mission out into the community.
For instance, there is nothing wrong, after your property/purpose/insurance analysis, with posting a friendly sign like this:
"Our parking lot is for the safety and convenience of
our Library's diverse and wonderful community.
Please limit your use of our lot to parking your bike or car
while using the services of the library."
Or, if the "personality" of your library is a bit less celebratory, and there has been collaboration with local law enforcement on the issue, and it has been determined that it is safest to employ some forceful messaging, the signage can say:
"Parking lot use limited to parking for
library patrons, employees, and vendors.
Which brings me to the member's actual question:
"Would something more specific like [listing barred activities] be a benefit or would it be worse because if they hurt themselves doing an activity other than those listed they can say they were in their right?"
As you can see, I do not recommend barring a list of activities--partly for the reason in the question, but more fundamentally, because a list of “forbidden” activities only invites quibbling during enforcement (see footnote 9), which creates a needless headache.
In my experience, those who actually have to enforce a policy (a director, a security officer, a police officer, a municipal employee), should be meaningfully consulted during its development, and are better served by a final product that positions them to quote a broad definition of purpose, together with a bar on unrelated activity, such as:
"This parking lot is for parking only.
No recreational use allowed at any time."
And finally, let's talk about that all-important STEP SIX: Dealing with the Human Factor.
We all know this: an institution can install signage six feet high, in flaming letters, and if someone wants to trespass on it after hours, that signage will not stop them.
If that is true, what is the purpose of the signage?
The purpose of the signage is 1) to promote safety; 2) to reinforce mission; and 3) to be able to show that, if injury occurs, the library in no way encouraged, condoned, or sanctioned the activity that caused it (and in fact, forbid it).
Now, while that is important, there is one other thing I must get out there while we're talking about limiting premises liability: just as critical as clear, enforceable signage is ensuring that the library is not maintaining a hazardous condition.
Why? If the injury a trespasser experiences on property is related to a known defective condition (a pothole, for instance, or a heaved sidewalk) the owner/controller of the parking lot could still face liability. To truly promote safety and guard against liability, an owner who invites the public onto their land must be able to show it was not "on notice" about the defect, or that if it was, it had taken adequate steps to protect the public from the hazard (surrounding the pothole by cones, or getting it temporarily filled with cold patch, for instance).
This is why a vigorous facility maintenance plan and deferred maintenance/contingency repair budget is just as--if not more--critical as proper parking lot signage.
In closing, I have to say: writing effective property signage is a tricky thing. Since there is no perfect way to do it, I advise aiming for something that clearly limits the use of the restricted property to its core function (in this case, parking), while also reinforcing the identity of the library as a community resource. Here is a model to consider (after your library follows all the steps):
"To promote a safe and welcoming environment,
this parking lot is for parking and library-approved events only.
All other uses must be approved in writing by the library.
To inquire about using our lot for a community event, call ###-###-####."
...with shorter, smaller, punchier signs at key areas to reinforce the core message:
"No playing in our parking lot at any time.
I wish all libraries reading this a reduced-risk, injury-free parking lot.
 In the field.
 I had a board in the 80's, but I only ever attained the level of skill shown in Tom Petty's "Free Fallin'" video (which is to say: not very much).
 And maybe earlier?
 I like this one: People v Smith, 160 Misc 2d 1070 [Just Ct 1993]
 I am not going to cite a study here. Rather, I will cite NY Insurance regulation 11 NYCRR 27.3, which includes in a list of specially elevated risks: "Asbestos, Fungi and Water Damage Remediation ... Amusement Parks and Carnivals Property...Amusement Rides and Devices ...including bumper cars, go-carts and go-cart tracks, giant slides, skateboard tracks, roller-blade tracks...."
When you want to know if something is statistically risky, ask an insurance carrier.
 These measures are also used to "dissuade" people from sleeping and getting comfortable in public spaces, an overlap worth contemplating.
 A skateboarder or roller-blader on a sidewalk or in a parking lot can pose a risk to a person walking with a small child or stroller, using a walker or wheelchair, or walking an animal.
 Although the question was confined to the "parking lot" I am adding "and grounds" since this issue doesn't just involve parking lot concerns.
 BMX bikes, skateboards, and roller-blades take the brunt of this type of issue, but frankly, does your director want to quibble over policy when a group of rogue folk-dancers hosts an event in the parking lot after-hours?
 I like this last bullet because it reserves the right of a library to host a planned recreational event, but to otherwise bar them on the property. Further, by avoiding the term "loitering," it reduces the risk of confusion for those who need to park or sit on the grounds after-hours to use a library's 24/7 free Wi-Fi.
 If you go with this one, confirm with your local PD that they will do this in a way that is consistent with the mission and role of the library. NOTE: I appreciate that in some places, this will not be viewed as a viable option. The mission of your library should be the guiding factor in deciding whether or not to involve law enforcement or private security in this type of policy.
 Whenever possible, it is good to use a licensed architect or credentialed municipal planner to design signage; they will pay attention to things like reflectivity, placement, font choice, and ADA accessibility.
One of our member libraries has asked me the following question:
"We'd like to create an online catalog of drone pictures of our area. What do we need to consider? We know people are posting these pictures on Facebook, and we'd like to request permission to collect them all in a catalog on our website. Please let me know any technical issues or legalities we need to keep in mind. I think it's a good idea, but I don't know exactly how to implement it."
Are drone pictures copyright free as they are in other people's properties and cover large areas? Is it legal to post drone pictures without permission?
Thanks for any thoughts on this topic!
This is a cool idea—aggregating and cataloging drone shots. Someone fifty years from now will be very, very grateful for that type of work!
But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security. How does the library make sure none of those concerns negatively impact the project?
Let's take those in order.
Legal Concern: Copyright
This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone. They are never the property of the area photographed (unless the property owner is also the photographer).
What is the "one exception" to that ownership? If the photographer is taking the drone images as part of their regular job, the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).
Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library. Other than those complications, with the right agreement, permission and use should be simple.
Legal Concern: Privacy & Security
The "copyright" section, above, is fairly simple. Things are a bit more complex when it comes to privacy and security.
There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security. Here are the most common I could rattle off at a cocktail party:
In addition to my "rattle it off" list, I did some research. If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:
In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation. We’ll address that more in the last section.
Legal Concern: FAA-restricted Areas
The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:
I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times. However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times.
The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:
This was so cool, I looked up my part of the state:
And now I know where not to fly the drone I don’t own.
Sample License for Use of Drone Pictures
Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space, or otter harassment, here is a sample license for securing permission to include them in an online catalog:
IRREVOCABLE, NON-EXCLUSIVE LICENSE
[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.
Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.
In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].
Signed by Photographer: _________________________.
Signed on behalf of the Library: ___________________________.
A Final Word on Getting "Permission"
This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.
However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.
Why is that? If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary.
Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value. And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections the project will be able to avail itself of.
Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. 
My takeaway in this final part of the answer? If your project is of academic, historical, or social value, don't let lack of permission be a roadblock. Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on. This will lay the groundwork for a strong archive or catalog.
Posterity will thank you.
 Head Photographer at "Drone Shot Weekly?"
 Here is the FAA guidance on media use of drones for newsgathering: https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf. It’s interesting: even if using a small drone, such use doesn’t qualify for the “hobby” exception, and the drone should be registered.
 Do you need the “right agreement?” See the section of the answer called "Sample Agreement" for an example.
 NY Penal Law 250.45
 JUST TO BE CLEAR: I have 100% confidence that if a library comes across a creeper nude drone shot, they will not include it in an online catalog! I am just being thorough.
 New York Civil Rights Law Section 50.
 Per 50 CFR 18.137: "Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones."
 Thank you, THANK YOU to the member who sent this question. Because of you, I got to read the FAA's guidance to local law enforcement for drone-related incidents, which includes this practical guidance "NOTE: Battery life is typically 20 to 30 minutes."
 By the way, it might not be precisely forbidden for your library to post such images, just as a newspaper or academic publisher might reproduce them for purposes of news or scholarship. But since those categories come with some higher risks (particularly of being told to cease and desist), it is wise to consider consistency with the purpose and ethics of your archive before including them.
 I am not saying to not consider them...just don't let them be project-killers.
 Such as fair use, journalism privileges, and recognition of the non-commercial nature of the use.
A municipal public library has accepted a gift of real property and is selling the property.
How much autonomy does the Library have in accepting and selling this property? The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum (as required by law).
Finally, who controls the proceeds from the sale?
In law school, one of the first classes you take is "real property."
I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property? What...is there something called UNreal property?
Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"
Warn your kids: this is what three years of law school will do to you.
I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them. Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts, and poring over inspection reports. And don't get me started about design-build contracts.
In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019. So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.
This background allows me to jump right into the specific concerns of the member's questions:
Question 1: "How much autonomy does the Library have in accepting and selling this property?"
Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.
Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.
Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.
Question 3: Finally, who controls the proceeds from the sale?
Answer: the board of the library, and no one else.
To the member's brief, pithy questions, I will add a question of my own:
Question 4: Why am I so confident about the answers to questions 1 through 3?
Answer: because I have researched the following:
These materials span over sixty years of library law-making, and I am not going to summarize them all here. But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:
Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York, may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."
Here are some examples showing how this legal structure has been applied:
In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners. This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot). If that is the case, the law and regulations applicable to both entities would govern a sale. However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.
Flash forward to 1976, when the Comptroller stated that a school district library could acquire a building on its own. Since that time, there hasn't been a lot of case law over who owns library buildings: like any other stand-alone, not-for-profit education corporation, a library can own its own building.
That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used. This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).
Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings. Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county). But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.
So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability. As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).
Thank you for a great question.
 A "title abstract" is a summary of everyone who has owned a parcel of property since it was first regarded as something to be owned. It can contain all sorts of historically salacious details, like when a house was foreclosed on, or what it sold for in 1935.
 Which all Regents-chartered "municipal" libraries are.
 Opinion of the State Comptroller #142 (1953).
 Opinion of Counsel for the NY Education Department No. 61 (also 1953).
 Another type of "public" library.
 Opinion of the State Comptroller #771 (1976).
 There is a lot of case law involving the planning and construction of library buildings, but no squabbles about who actually owns them. For a good example of a case involving construction of a library, see Matter of Rimler v City of NY, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U] [Sup Ct, Kings County 2016].
 Martin v Board of Education, 39 Misc. 2d 519, 241 N.Y.S.2d 396, 1963 N.Y. Misc. LEXIS 1971 (N.Y. Sup. Ct. 1963).
 It is important to know who owns the building! If your library is a tenant rather than an owner, it impacts things like personal injury cases (an example of this is found in Deinzer v Middle Country Public Library, 2013 NY Slip Op 33823[U] [Sup Ct, Suffolk County 2013].
We are a Special Legislative District Library. We are constructing a new library and will be selling our current building. I would like to know if there are any specific steps we are legally required to take in selling the property. For example is public notice of the sale required? Are we required to entertain a certain number of offers, etc.? Thank you for any information you can provide.
A new library building! How exciting. And what a huge additional array of additional duties it presents, as the library begins to think about moving.
Transitioning library space is a huge undertaking. And when it involves selling the legacy structure previously occupied, the task can get even bigger.
Here are just a few of the plot twists I have run into during real estate deals involving old buildings:
Why am I setting out this litany of events, when the member just wants to know if there are any posting/bidding/process requirements when a Special Legislative District or “SLD” public library sells a former building?
I mention them because every real property transaction—no matter what type of library is involved—is different. And while the base requirements to transfer the building are actually very simple (we’ll get to them soon), the lurking contingencies can create painful extra “required” steps if not addressed well before the sale.
So, before I confirm the one step that absolutely must be taken, here is the “Ask the Lawyer: Basic Factors for Painlessly Selling Your Library Building.”
Why You Consider It
What You Do With It
Your Library’s CHARTER
Your Charter may list the location of your current building. So before you move or move to sell the structure, make sure the details aren’t at odds with anything in your founding document.
Okay, this is very important: Start a folder or a file on a shared drive. Going forward through this list, we’ll call this your library’s “Sale File”.
The “Sale File” is going to contain everything your library needs to gather to anticipate complications and get your legacy property ready for sale.
Your Library’s BYLAWS
The bylaws may reference the library’s location, and more importantly, they are the key to a board resolution authorizing the sale.
Put the bylaws in the Sale File.
Your lawyer will prepare the resolution the board must pass to authorize the sale of the property based on what’s in the Bylaws.
The DEED to the property.
The deed is proof that your library owns the property; it is also proof of the exact boundaries of what is to be sold.
Put the deed in the Sale File.
If you can’t find it, DON’T PANIC, you can get a copy from your County Clerk.
The SURVEY of the property.
The survey is a precise measurement of the property. It is also a nice picture of the property, and shows important things like the exact acreage, and where your fence (if you have one) is.
Put the Survey in the Sale File.
If you can’t find it, DON’T PANIC, but alert your lawyer (see more on that below) because you’ll need one, and it will be an expense related to the sale.
Any DONOTION DOCUMENTS or CONTRACTS that the property is controlled by.
Your legacy building may have conditions on the ownership. This is a huge variable and it is important to address or rule in or out right away.
If you have any DONATION DOCUMENTS or CONTRACTS related to the building, put copies in the Sale File.
It will be the job of your lawyer to affirmatively rule out any donor direction or contract conditions controlling the property, but they can’t deal with what they aren’t aware of.
Any LIENS or MORTGAGES on the property.
Your legacy building may have been used to secure a loan, or perhaps a sub-contractor has a lien related to a contract dispute.
If a valuation of the property was conducted as part of a loan, that should go to the lawyer, too.
These also need to go in the Sale File. But generally, these are public documents, and can be obtained at the County Clerk’s. And if you don’t know about them, don’t worry: it will be the job of your lawyer to affirmatively rule out any “burdens” on the property (although the library will likely have to pay them off).
Any DEFECTS or DANGEROUS CONDITIONS the property has.
Hard-working, older legacy buildings can have problems, and your library’s awareness of any defective or dangerous conditions will likely have to be disclosed as part of the sale.
This is best planned up-front.
Once you have a lawyer for the sale, work with them to discuss any awareness the library has of lead paint, asbestos, mold, or any other conditions of concern. Although certain conditions must be disclosed as part of a sale, this initial discussion should be done during a consultation that is protected by attorney-client privilege.
The building’s ASSESSMENT.
Chances are, as a non-tax-paying entity, your library has not paid much attention to its assessment. However, if the sale is to a non-exempt party, this number is going to get relevant. It is good to consider that factor up front.
Yes, it goes in the Sale File.
The Library’s LAWYER
In the boxes above, the word “lawyer” appears more times than the rules for good writing allow (for pacing and to avoid being repetitive, I should have said “your attorney,” and “your legal counsel”, but I wanted to make a point here).
I trust you see the pattern that is emerging: real property transactions are complicated (we haven’t even gotten to the library and not-for-profit-specific stuff yet) and the sooner a knowledgeable attorney is assessing the transaction and making sure the library has addressed any contingencies, the better.
(NOTE: now that I have made my point, I will use synonyms for “lawyer”).
An attorney retained by the library to handle this transaction should bring the following to the table:
1. They should have handled at least three other transactions involving the transfer of real property owned by a not-for-profit;
2. They should provide the library with a retainer letter that quotes not only the rate for the closing (usually there is a “range” in a particular area), but the hourly rate for work on things like your bylaws resolution, dealing with any lingering concerns, etc.
3. The attorney should be asking for the items in the “Sale File” (and more) if they don’t have them already.
The board should not be afraid to ask for proposals and to comparison shop!
The library’s REAL ESTATE AGENT
This person should only be appointed after you determine your lawyer (if appointed at all). If your library does use a licensed realtor, they should be selected for both their previous experience with similar properties, and their ability to productively cooperate with the library’s attorney.
The real estate agent should also be under contract (a contract first examined by the library’s lawyer) and the library should never agree to the agent serving in a “dual” role for the seller (the library) and the buyer.
A VALUATION of the property
As fiduciaries of the library, your board owes it to the institution to work for the best possible price (unless the property is to transfer in something other than an “arms-length transaction”; more on that later). This means their vote to sell should be backed by reliable information, provided to the board without bias, and based on professional credentials.
The board should consider the valuation, along with the input of the lawyer and the real estate agent, prior to resolving to accept a contract of sale.
If relevant, the building’s LANDMARK status or location in a designated historic building, and any documents pertaining to its HISTORY.
This can impact the use your buyer can make of the building, and can also impact the costs of rehabilitating or renovating it.
Marketed properly, historic status is a benefit. But you have to find the right buyer. It is a big factor to plan around.
Once you’ve assembled the “Sale File,” the attorney retained to assist the with the sale will be able to help the library chart a path forward.
Why do I keep emphasizing the early involvement of an attorney? One look at all the variables created by the factors in the chart above (and my bullet list of “interesting” contingencies) shows why the early involvement of a lawyer is necessary.
Now, at this point the astute reader will probably say: “This is a great chart and all, Ms. Lawyer, but are you really answering the member’s question? They asked about required steps for the sale of a special legislative district library.”
The reason the chart (partially) answers the member’s question—or rather, positions someone to answer it—is because, based on the variables listed on the chart, there may be numerous steps required in the sale.
But what steps—no matter what—are required?
For a library whose building is not owned or controlled by a village/town/city/county, the sale is governed by a combination of the Education law, and the NY Not-for-Profit corporation law, which empowers a library’s governing board to acquire and dispose of library assets in a way that best stewards the overall well-being of the library. No public posting or precise bidding process is required. But there is one thing:
No matter what—the board will need to pass a resolution approving the sale…after receiving sufficient information to show they have examined the sale terms and made a decision in the best interests of the library.
How do you show the contract terms are in the library’s best interest? By considering them in light of the library’s overall position, and the factors in the Sale File.
Now, with all that being said, I do have to emphasize an important distinction: the transfer of a library building is different than the transfer of an entire library. The transfer of an entire public library as a “going concern” may be subject to a municipal vote, which is allowed by Education Law Section 266. But, as ruled in 1992 in the case of Briody v. Lewiston, Section 266 does NOT apply to the sale of only the library’s building.
The Briody case, by the way, is a great example of why a library sale requires careful legal planning. In that instance, the library conveyed its legacy building “pursuant to an agreement entered into in 1972, which provided that, if the Library moved to another location, it would convey its property to the Town and Village, which could dispose of the property for any purpose.” On the chart I provided above, this type of “Briody contingency” would be caught by a combination of factor 5, addressed by factor 9.
The good news is, when a library has already gone through the intricate dance required to fund, plan, and contract for a new building, they likely already have an attorney “briefed and ready” to assist with the sale of the old. That attorney will also be in the position to help the library plan for contingencies that could delay the move (such as—shudder—complications during construction).
So, what steps get you to that board resolution, and a smooth process? Assemble the Sale File, ask your attorney out for a stroll, and start planning a sale the board members can vote for with full confidence that they are making the best decision for the library.
Best wishes for an easy Certificate of Occupancy, a smooth transition to the new building, and a sale that shows the trustees are formidable fiduciaries!
 Man, they used to put that stuff in everything but breakfast cereal.
 SO COOL.
 Okay, I can’t promise it will be painless. But think of this as the difference between working out regularly and running a 5K without training.
 I probably don’t need to tell an audience of librarians what a great resource a county clerk can be. For instance, the Madison County Clerk has this great resource for finding deeds on their website: https://www.madisoncounty.ny.gov/DocumentCenter/View/152/How-to-Obtain-a-Copy-of-Your-Deed-or-Mortgage-PDF?bidId=
 I love buildings, especially when they ooze history and charm (sadly, this also means they might ooze lead and asbestos). When a cultural institution is transitioning space, I often call the “old” building the “legacy” building. It’s a way of saying “We’re looking to the future, but we honor the past.”
 Municipalities have to follow an array of “highest bidder” or return-on-investment rules, and yes, there will be some requirements on the process, too. But when those apply, it is not a sale by a public library, it is a sale by a municipality.
 Except for books. There are special rules on those (Education Law Section 226, the same law that gives library trustees authority over property). And of course, any assets governed by special grant terms or a donor contract.
 Unless the board is selling the building AND closing the library, or disposing of “substantially all” of its assets. THEN you need permission of either the NY Supreme Court or the NY Attorney General for the sale. But happily, that is not the situation here.
 591 N.Y.S.2d 909, 1992 N.Y. App. Div. LEXIS 14855, 188 A.D.2d 1017
Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from entrances?
Not only is it legal, but it is required by law.
When the new provisions of New York’s Public Health § 1399-o first went into effect June 19, 2019, “Ask the Lawyer” got a question about enforcement, so we wrote a guide for implementation.
While hopefully the “guide” has been useful (it warmed my heart to see one library getting media coverage for putting up signs with wording I suggested), it might be easy to miss the actual heft of this law as we think about the details of implementation.
So here, without too much distracting commentary, is the text of the new law:
Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property. [emphasis added]
Seems pretty straightforward to me…“outdoor areas” as in: the outside (with an exception for nearby residential properties).
Despite this straightforward language, since I wrote the “guide,” we have gotten some questions from members stating that their local health department claims they will only enforce compliance within 100 feet of exits and entrances.
This feedback really concerned me. First, it is contrary to the plain language of the law. Second (but really first), libraries are finding new ways to reach out to the public every day; this includes outdoor programming. “Outdoor areas” of the library serve the public, too.
So, inspired by this latest question, and the feedback we’ve received, I called my local Erie County Department of Health, and reached Rob Tyler, who works on smoking enforcement.
Rob and I had a nice chat about how sometimes the language in these laws can be open to interpretation, but this seemed pretty clear. But then he suggested: “You should probably call the State. They are one ones who can give guidance on the law.”
So, after thanking Rob for his time, I called the General Counsel’s Office at the New York State Department of Health, and was directed to attorney Megan Mutolo.
Megan also agreed with me on the plain language of “outdoor areas.” That said, she urged me to urge libraries to build a relationship with their county health departments so libraries are ready to enforce the new law together.
This is good advice from Megan. Since New York tries to encourage “municipal home rule,” as much as possible is left to local officials from within a particular community. This means that local health departments can have their own take on the new law…one that you can discuss with them while forming a meaningful alliance.
So, to the “helpful tips” in the “guide,” inspired by this question, I add: Consider making a connection with your local health department, and reviewing the precise language of the new law together. Many departments, if they have not given the new law a careful review, might overlook the requirement about “outdoor areas.” But that language is there, and when read in context, is very clear—as is the library’s obligation to enforce this law.
Thanks for your question!
 Here’s to you, Saratoga Public Library!
 As but one example, the Buffalo and Erie County Public Library’s Central Library has a great new “Reading Garden” in downtown Buffalo.
 NOTE: I called both these people on a Friday afternoon. Not only did I get quick answers, but they were friendly, too! I guess you don’t go into health law unless you really care about people.
 My words, not Megan’s.
 I know they have enough on their plate already, but this might be something a library system can help with.
Various individuals and organizations have organized historic marker/signage installations in Buffalo over the years, including the Buffalo History Museum, the Pomeroy Foundation, neighborhood organizations, etc. Sometimes one entity, an individual or nonprofit, organizes the project while another entity, a foundation or private company, underwrites it. And then a third party is involved when it comes to installing the marker, by providing permission to use either private or public land.
My question is: whose property are these markers once they are installed?
This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation.
When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination.
I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that? And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?
Unfortunately, finding the answer is not as easy as crashing your bike into a marker.
The solution starts out simply enough: property that is “fixed” to land becomes a “fixture,” and title to it runs with the land. This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it. And unless something provides otherwise, a historic marker on the property would belong to you, too.
The problem is, there are a lot of “somethings,” that could provide “otherwise.”
In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page). And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.
Meanwhile, many private organizations exist to support the site-specific preservation of history. As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.
As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary). That is a typical approach. However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest.
So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.”
How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on? There is no one-size-fits-all answer, but here is a process that should help:
Step 1: Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).
Step 2: Confirm if any easement or other real property condition controls the area of the land with the marker.
Step 3: Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation.
Step 4: Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement, designer/creator document, etc), may relate to the marker.
Step 5 (optional, but highly recommended): Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.
I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible. But it remains true: to assess the status of an historical marker, you need to know its history.
As for Step 5…that is more of a “best practice” than a legal consideration. Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning). This includes not only owners, but those who feel a connection to and love for the memorial. When in doubt, it is good to exercise diplomacy! And who knows, they might chip in on the maintenance fund.
History, property law, and signage are all serious business.
Thanks for a great question.
For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.
The [INSERT NAME] Historical Marker Legal Abstract and Dossier
Sponsored by [INSERT NAME OF ORGANIZATION]
This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker. This project might not require all the items below to be completed. When an item does not apply, enter “N/A” for “not applicable.”
[Attach picture of Marker]
Address of property Marker is located on:
Owner of property at time of installation:
Survey of property with Marker location noted: [attach after noting location on copy]
Attached signed copy of agreement with property owner:
[if easement or other property right granted, attach]
Installation start date:
Installation completion date:
Insert Description of Maintenance Plan or attach copy of plan:
Is there any money held in trust or budgeted for future maintenance? If so, please describe:
Federal law passed under:
[Attach copy of law and, if relevant, resolution or permit]
State law passed under:
[Attach copy of law and, if relevant, resolution or permit]
Local law passed under:
[Attach copy of law and, if relevant, resolution or permit]
Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:
Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:
Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:
Attach copy of any fundraising solicitation:
The Marker’s designer was:
[Attached contract with designer]
If there is a graphic, who owned the copyright?
The Marker’s fabricator was:
[Attached contract with designer]
Did the Organization’s board pass a resolution regarding the Marker? If so, attach a copy.
Did the Organization enter into a collaboration agreement to organize and effect the Marker? This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project.
If such an agreement was entered into, please attach.
Name of person filling out form:
Complete file with all attachments is located at____________________________.
 See the case Ritchmyer v. Morss, 5 Abb. Pr. (n.s.) 44, 1866 N.Y. Misc., among many, many others.
“The Common Council, by majority vote and with the consent of a private property owner who agrees to maintain the same, may cause to be erected or affixed to a structure a local historic marker that provides information regarding a site that it deems to be of local historical interest, after verifying the accuracy of the information contained on said marker with a local historian and by properly designating and appropriating funds for the creation of the same. A local historic marker shall in no way deem the site or structure it describes as a landmark, landmark site or historic district as those terms are defined in this chapter, nor shall it afford the local site or structure any additional legal protections or benefits.” [emphasis added to address maintenance aspects of question]
 Since this was an important aspect of the question, I gave the WGP a call. I was fortunate to reach Christy Fuller, who was very gracious about answering a convoluted phone call from a lawyer at 9:30 on a Monday. Christy confirmed that WGP does not condition their grants on ownership of the resulting marker.
 A maintenance plan should really be part of any historic marker installation. The application guidance from WGP, for instance, mentions this. But if every marker had a perfect plan, I bet I wouldn’t have gotten this question.
What laws impact a library’s next-door-neighbor relationships? Are there best practices for neighbor disputes?
There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors. I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery. A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.
What laws impact a library’s relationship with its neighbors? Most libraries exist on land, or within a building, so the controlling law is called “real property” law. “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo). Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”
Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law. And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too.
And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.
Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor. But are there any general “best practices” to abide by? Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.
Practice #1: Know where you stand
Every library should know precisely what property they occupy, and how they occupy it. To do this, I recommend what I call a “binder solution.”
For libraries that own their own property, the binder contains:
Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world.
For libraries that do not own their premises, the binder contains:
Why does all this matter? Many real property battles are lost when owners over-state or mis-portray their rights. Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).
Practice #2: Know your neighbor
This advice works on two levels.
The first level is obvious: know your neighbors. Invite them over. Know the names of their kids and what sports team they root for. That type of outreach is insurance against any number of serious disputes.
The second level is a bit more covert: what’s in their “binder”? Are they the owner? Are they renting? Might they be a squatter? Basically, to the extent possible, develop a “binder solution” for them, too. In getting to know them a bit better, you might develop some insights on the roots of your dispute.
Practice #3: Isolate this issue
In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break. You are alongside and--in some places practically on top of—each other, 24/7. And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.
That said, if you have a potential neighbor dispute, isolate what you think the true cause might be. Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989? Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?
The point of this is: make sure you really know what’s up. That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.
Which brings us to…
Practice #4: Use a professional!
Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations. They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.
If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor. Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.
Practice #5: Pick your battles!
Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission. For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.
It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:
Fight the Battle?
Owns its property, and just put a new skylight in.
Is a long-term renter.
With the new skylight in, the ska music they have been blasting since 1987 can now be heard in the periodical section.
Could be in violation of a noise ordinance.
Could be a violation of their lease.
Best to first gently and informally raise the issue with their landlord; if you’re in a small town, make sure you know all the players. This could be a diplomatic (and loud) nightmare.
Rents its property, and has had the same lease since 1996.
Owns their property across the street.
After getting all the proper permits, your neighbor excavated for a new building and hit a natural spring, causing flooding in your basement and ruining a significant array books.
So much! This would call for an immediate and very well-organized response. But even before you call your lawyer, call your landlord and your insurance carrier.
You’d have to pick which battle. Moving to a new location might be more mission-aligned than staying in a potentially damaged and moldy structure.
Is a public library that has occupied the second floor of the Town Hall 1934, but there’s no lease and no one has really questioned the arrangement.
Is the Town Historical Society, who have been in the basement of the Town Hall since 1974.
The Historical Society has, without asking, recently taken over your community reading room with a display case of genealogical charts. The room was recently redecorated with a grant that requires the room be accessible to all.
The only entity with clear rights here might be
Ugh. This is the type of battle that can get ugly, quickly. Hopefully after you assess your position with a professinoal, some diplomacy and living up to any contractual obligations can save the day.
Is buying a historic property to rehab and move into.
Owns the house next door.
In surveying the property, you find out that 5 years ago, your neighbor built their fence over two feet onto your new land.
This could involve looking at the survey, searching for easements (permission to use your property), and making an inquiry of the person you bought the property from.
You have to address it, since leaving the fence there without protest could result in the property eventually becoming the neighbor’s! But be strategic and consult an attorney before you raise it externally (including with the neighbor).
My overall guidance? Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families. It’s amazing how much ill will can dissolve over apples and pears.
Good luck out there!
 Inspired by this sentence, I checked: yes, as I am sure my readers are aware, there are libraries boats and library planes, too.
 I love historic properties and historic preservation. That said, if you plan to do this, make sure your team has at least one person who has done a major preservation project before. Those buildings are full of expensive surprises.