RPAPL 881 Can Be Used to Compel Access to A Neighbor's Property Where Necessary For Construction

When access to a neighboring property is necessary to complete an improvement, New York Law provides a qualified right to seek a Court Order compelling such access.  Real Property Actions and Proceedings Law § 881 states:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of or otherwise arising from the entry. 

“In determining whether or not to grant a license pursuant to real Property Actions and Proceeds Law § 881, courts generally apply a standard of reasonableness” (In re Board of Managers of Artisan Lofts Condominium, 114 AD3d 491, 492 (1^st Dept. 2014) .  The Court  “must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted,” and the “factors which the court may consider in determining the petition include the the nature and extent of the requested access, the duration of the access, the protections to the adjoining property that are needed, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage and inconvenience resulting from the intrusion.” Queens College Special Projects Fund, Inc v Newman, 154 AD3d 943, 944 (2d Dept. 2017)

The Court’s discretion in applying RPAPL 881 is also constrained and guided by important constitutional considerations. Granting a license for access over a property owner’s objection has “similarities to an eminent domain proceeding,” and is essentially a “forced temporary easement” that is justified by “benefit to the public” in fostering improvements to neighboring private property.  North 7-8 Investors, LLC v. Newgarden, 43 Misc. 3d 623, 632 (Kings Co., 2014); (See also NYS Const., Art. I, § 1; U.S. Const., Amends. V and XIV).  In bringing this application and invoking the Court’s equitable jurisdiction, a Petitioner is asking the Court to “reconcile two competing objectives central to regulatory takings doctrine: the individual's right to retain the interests and exercise the freedoms at the core of private property ownership… and the government's power to adjust rights for the public good.” Murr v. Wisconsin, 137 S.Ct. 1933, 1942 (2017)(discussing “complex” regulatory takings involving less than a complete deprivation beneficial or productive use).  Additionally, the intrusion potentially implicates a person’s right to be “secure in their… houses… against unreasonable searches and seizures,” or at least related policies and principals whereby such a request should not be granted without sufficient cause.  U.S. Const., Amend. IV and XIV; Jacobowitz v. Bd. of Assessors for Town of Cornwall, 121 A.D.3d 294, 296 (2d Dept. 2014)(4^th Amendment is not limited to criminal matters, but also applies to inspections for the purpose of property appraisals).  

  Local regulations, particularly in New York City, may supplement RPAPL§ 881.  The City's Building Code, including various sections in Chapters 18, 28  contains various safety requirements, as well as a procedure wherein an owner can make a pre-action request for access which, if unreasonably denied, gives the person seeking access the ability to shift the cost of protecting the neighboring site to the adjoining owner.  Chapter 18 contains requirements related to conducting excavations near another property owner’s foundation and requires, among other things, preparation of a pre-construction report by an engineer that examines the risk to the adjacent structure, underpinning or shoring where necessary, and a monitoring program with oversight from the Department of Buildings. (NYC Building Code § 1803.1 and 1814.1 – 1814.3.).  Section 28-110.1 provides for the preparation of a detailed Site Safety Plan that satisfied twenty-ones  requirements, which should – among other things – identify the locations of all fences, gates, guardrails, loading areas, hoists, sidewalk sheds, horizontal or vertical netting, foot bridges, temporary elevators, and ramps; provide specific details regarding crane information, street or sidewalk closing locations, all “surrounding buildings, indicating occupancy, height and type of any required roof protection;” and all “required safety netting and scaffolding;” and be accompanied by  “a copy of the proposed site safety manager or site safety coordinator's certificate, as applicable, including the certificate for any alternate site safety manager or site safety coordinator.”  

Section 3309 of the NYC Building Code, entitled “Protection of Adjoining Property,” imposes strict liability for damage to a neighboring property during construction or demolition, but creates a framework for providing notice of an intention to seek a licensing agreement so as to facilitate adjoining property owners engaging in good faith negotiations as to appropriate terms, with the cost of protecting the neighboring property potentially shifted to the neighbor if they unreasonably withhold consent. New Life Holding Corp. v. Turner Const. Co., No. 650993/2011, 2014 WL 5023524, at *15 (N.Y. Co. Sup. Ct., 2014). To invoke this provision, a developer seeking access must provide their neighbor with a detailed notice at least 60 days prior to commencement of work, with a second notice at least 30 but not 45 days prior to commencement of an action seeking a license.  (NYC Building Code § 3309.1.1).