Granting Access for Repairs & Improvements The Real Property Actions & Proceedings Law

 Like all property owners in New York City, cooperative and condominium boards  and their managing agents are sometimes presented with a problem which, while  not unique, is perhaps more pressing here than elsewhere: with land so  developed, it is sometimes impossible to build, repair or improve your own  property without accessing your neighbor’s. If your neighbor is unwilling to grant you access, what is your remedy?  

 The answer is Real Property Actions and Proceedings Law Section 881. This statute allows property owners to go to court and obtain a license to  enter the adjoining owner’s premises in order to make desired improvements or repairs to their own  property. The statute has been interpreted broadly to encompass work ranging from making  purely cosmetic changes to erecting an entire building.  

 The significance of the problem is more than theoretical because it affects a  co-op’s or condo’s finances as well as its ability to meet mandated repair obligations. The most tangible example of its importance is a situation where the building’s engineer reports under New York City’s Local Law 11 that repairs are required to be made to a building’s façade or structure. It is not difficult to imagine a structural configuration in New York City  where obtaining access to portions of one’s own building (such as a façade) is not possible without stepping onto or otherwise using an adjacent  property or building. Alternatively, in order to obtain a permit from the Department of Buildings for  such work it may be necessary to erect a protective shed or bridge on the  adjacent property. When the neighbor refuses to grant access, or demands an unreasonable amount of  money or other unfair conditions, there is a statutory remedy.  

 Property owners cannot, of course, simply invoke this statute whenever  improvements to their land would be made simpler through access to their  neighbor’s property. Proceedings under Section 881 should be brought only when: (1) the improvement  or repair cannot be made without access to the neighboring property; and, (2)  the adjoining property owner has refused to allow access. Even under these circumstances a court needs to balance the interests of each  landowner. The license should be granted when necessary, and in cases where the hardship  that will result from the refusal of the license stands to outweigh the  inconvenience to the neighboring property owner.  

 A proceeding under Section 881 is intended to be heard efficiently and  expeditiously. All that is required is that the aggrieved cooperative or condominium  association files the necessary papers with the court which show the facts  making the entry necessary and provide the dates on which entry is sought. The adjoining property owner has the right to submit opposition papers. An appearance before a judge and, if necessary, a hearing where witnesses  provide testimony should be scheduled by the court promptly.  

 A Simple Fee?

 Access is generally not granted for no consideration, of course. The court will impose reasonable conditions upon the issuance of the license. The party who needs access will generally be required to pay the adjoining  property owner a license fee. The amount of this fee will vary with the facts of each case but can be  expected to be in the range of less than $10,000 each month, payable directly  to the neighbor. In determining the license fee courts may consider factors such as the length  of time of the license and the degree of interference with the adjoining owners’ property.  

 It is also possible—although this issue is unsettled – that the degree of interference with the property rights of any tenant of the  adjoining property owner may be considered, particularly if there are concerns  over the tenant’s safety. The aggrieved co-op or condo can also expect to be held liable for damages to  the adjoining property resulting from the work during the period that the  license is in effect, and may be required to provide the adjoining owner with  insurance coverage, a bond, or both. Other terms and conditions may be negotiated, as dictated by the needs, wants  and leverage of the parties.  

 This is not an opportunity for the adjoining property owner to make money. Any  property owner taken to court under Section 881 and expecting a windfall will  likely be disappointed. Instead, the parties should expect the court to recognize that the license fee  is for compensation, not for profit.  

 For example, there was a case heard in Brooklyn where a developer sought a  license pursuant to the statute to enter the adjoining lots of two neighbors.  The developer needed the license in order to erect sidewalk bridging and roof  protection associated with the developer’s construction of an eight-story building on its lot.  

 The court noted that the neighbors’ property rights might be significantly affected – they would be unable to obtain financing with scaffolding attached to their  property, their property might lose value due to the existence of the  eight-story structure, their sunlight and fresh air would be affected, and  their own construction plans would be adversely affected.  

 However, the court found that the rights of the developer would be more severely  affected if it was not allowed to develop its lot. The court granted a license for a year and ordered the developer to pay an  aggregate $5,000 monthly license fee to the neighbors—$2,500 per month to each neighbor. Clearly the neighbors did not receive a windfall.  

 Come to an Agreement

 While these cases may in fact be handled speedily and with less expense than a  drawn-out lawsuit, this may not occur. Therefore, as with most litigation, it is generally advisable for both parties  to attempt to come to a mutual agreement rather than submit the dispute to the  court. If you find it necessary to access your neighbor’s property in order to perform repairs or make improvements, negotiating first  is your best course. Understand that the court is almost certainly going to award your neighbor some  sort of financial protection against damages, such as being named an insured  under a liability policy; it therefore might makes sense to offer to provide  this protection as part of a negotiated settlement. Understand further that while you may find a license fee objectionable, the  court likely will require that you pay something, and, despite the expedited  nature of these claims, litigation can still be expensive.  

 On the other hand, if your neighbor is requesting access to the co-op’s or condo’s property, understand that unless you can demonstrate that such access is not  necessary to perform the desired improvements or repairs, there is a good  chance that the court will grant the access. Also, because the court may not agree with the amount requested by the co-op or  condo board for the license fee, it is important to be reasonable. Litigation is expensive—don’t let its costs eat into the license fee you do receive.  

 Of course, settlement and negotiation do not always succeed. When they fail,  Real Property Actions and Proceedings Law Section 881 provides a method to have  repairs and improvements move forward as quickly as possible.   

 Peter G. Goodman, Esq. is a partner, and Brian C. Lavin, an associate, with the  Manhattan-based law firm of Hartman & Craven, LLP.  

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  • I need to rebuild a retaining wall. My neighbor refuse assess to her side of the property. My side is 4 ft higher and will take 18" of her driveway which is on my property when I rebuild. What can I do?
  • Does 881 or other statute apply to the right of a condo UNIT owner to access another apartment in the building in order to correct a problem with heat or hot water in the unit owner's apartment?