By Michael J. Spithogiannis, Esq. & Floyd G. Gossman, Esq.Email Michael Email Floyd
You hear a knock on the door. . . . It’s your next-door neighbor, who tells you about plans to make improvements to his property. You are assured by your neighbor that all improvements will be made according to applicable building codes, and that all contractors will be licensed and insured. The work may take several weeks, or longer, to complete. Oh, and by the way, to perform the work, your neighbor’s contractors need access to your property for much of the duration of the project, as there is no other practical way of completing the job. Are you okay with that?
Before you grant access to your land, you need to understand your rights. By law, entering upon another’s property without permission is not allowed. An owner of property is entitled to its exclusive possession. Going on someone else’s land without permission, even if done innocently or by mistake, is a trespass. The trespass can be enjoined and the trespasser held liable for damages. It would seem, therefore, that you have every right to refuse access to your adjoining neighbor, who is set on improving his or her property, or making necessary repairs. On the other hand, it seems unfair, provided the proper safeguards are implemented, to deny an adjoining landowner needed access to make lawful repairs or improvements simply because the only way to do so requires access to your land.
This scenario arises often. Indeed, in more densely populated areas – especially those in the City of New York – this situation is regularly encountered among owners of single-family homes and those with multi-story buildings. Many properties share driveways and party walls, and buildings are built lot-line-to-lot-line, making it virtually impossible to avoid entry upon neighboring property to perform work.
The law in New York tries to strike a balance between these real concerns and interests, so as to afford property owners access to neighboring property for the sole, temporary and limited purpose of making repairs or improvements, provided proper safeguards are put in place to avoid any cost or injury to neighboring property.
In 1968, the New York Legislature enacted §881 of the Real Property Actions and Proceedings Law (“RPAPL”) to strike a balance between conflicting interests of adjoining landowners.[1] Section 881 provides that an owner who wants to make improvements or repairs to land so situated that they cannot be made without access to adjoining property, and who has been denied permission by the neighboring property owner, may bring a court proceeding to obtain a temporary license for the limited purpose of entering upon the neighboring property to make those improvements or repairs. This special proceeding, as it is called, is designed to be adjudicated on an expedited basis, as the situation often demands prompt action.[2]
Early on, the constitutionality of RPAPL §881 was challenged as, among other things, authorizing a taking of private property for a private use; being unrelated to public safety, health, welfare and morals; and interfering with private property and private contractual rights. Its constitutionality was upheld as a valid exercise of a state’s police power.[3] Indeed, the statute affords equal opportunity for all landowners to enter upon neighboring property when necessary and under reasonable circumstances to preserve their own property interests, and provides for full compensation if the neighboring property is damaged.[4]
Section 881 states that “[t]he license shall be granted by the court in an appropriate case upon such terms as justice requires.”[5] As the statute is written, once the adjoining owner proves necessity, the court shall grant the license. Although it seems that the courts are constrained to grant licenses once the requisite necessity is shown, they have discretion in determining whether relief is necessary in the first place, and to impose such terms as justice requires.
The statute requires the petitioning landowner to provide proof of the extent and duration of the work, demonstrate that entry upon the neighboring property is necessary, and confirm the dates on which entry is sought. Courts will consider a number of factors in deciding a petition under §881, including the nature and extent of the requested access and its duration; the protections needed by the adjoining property so that no physical or financial loss is suffered; whether less invasive means exist for performing the work; the public’s interest in completion of the project; and the measures put in place by the petitioner to ensure financial compensation for any damage or inconvenience to the adjoining owner.[6]
Before granting a license courts invariably balance the inconvenience to the adjacent property owner whose property will be burdened, with the hardship to the adjoining owner left incapable of making repairs or improvements if a license is refused.[7] Courts have held that a license should be granted when necessary, under reasonable conditions, exists and the inconvenience to the adjacent owner is relatively slight compared to the hardship of the neighbor if a license is refused.[8]
The statute also empowers courts to impose conditions for the license, such as requiring the posting of a bond, obtaining insurance coverage, construction of safety precautions, and indemnification against violations and mechanic’s liens.[9] Courts are mindful that the owner whose property is being accessed should not have to bear any cost, and often grant a license fee as compensation for the temporary loss of the use and enjoyment of the property burdened.[10] The statute itself states that “[t]he licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.”[11]
While RPAPL §881 provides for a litigated solution if permission is requested and denied, litigation can be costly, the results uncertain, and the time it takes to obtain relief unpredictable. There is, therefore, no practical reason adjoining landowners cannot avoid litigation and come to terms on their own detailed license agreement, negotiated by experienced counsel, that takes into account their specific concerns, and the details of the proposed work, and provides a workable methodology to protect their respective interests.
Michael J. Spithogiannis, Esq. and Floyd G. Grossman, Esq. each have over 35 years’ experience litigating commercial and real-property disputes in state and federal courts throughout New York.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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[1] Real Property Actions and Proceedings Law §881 (McKinney 2021).
[2] Prompt action is indispensable as building permits usually have a limited lifespan, lenders who finance improvements usually insist on hard deadlines for completion of work, and prompt repairs are necessary to prevent further damage or decay to the property.
[3] Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc.2d 1091 (Sup.Ct. Queens Co. 1968).
[4] Id. at 1094-95.
[5] Id. (emphasis added).
[6] Voron v. Bd. of Managers of Newswalk Condominium, 186 A.D.3d 833 (2d Dep’t 2020); Quinn v. 20 East Clinton, LLC, 193 A.D. 893 (2d Dep’t 2021).
[7] See Meopta Properties II, LLC v. Pacheco, 185 A.D.3d 511 (1st Dep’t 2020).
[8] Bd. of Managers of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491 (1st Dep’t 2014).
[9] North 7-8 Investors LLC v. Newgarden, 43 Misc.3d 623 (Sup.Ct. Kings Co. 2014).
[10] See House 93, LLC v. Lipton, 178 A.D.3d 545 (1st Dep’t 2019); DDG Warren LLC v. Assouline Ritz 1, LLC, 138 A.D.3d 539 (1st Dep’t 2016).
[11] RPAPL §881.