TWW Prevails in Obtaining Access to Neighboring Property Under RPAPL §881

On Behalf of | Jan 6, 2022 | Construction law, Landlord & tenant representation |

TWW recently prevailed in a proceeding seeking access to a neighboring property of its co-op client’s. Under RPAPL §881, a property owner may seek a court order granting access to a neighboring property where it is necessary for construction work or repairs to its own property or building (such access is commonly required in connection with mandate Local Law 11 work).

Oftentimes, needs for access are dealt with out of court – by way of license agreements (a/k/a access agreements), pursuant to which the neighbor agrees to the access on certain terms and conditions. (Be on the lookout for a future post relating to access/license agreements.) However, in this case, the neighbor refused to engage in negotiations for an access agreement. The neighbor alleged that our client had caused damage to its roof and refused to negotiate until a substantial payment for the alleged prior damages was made.

Our client chose to bring an §881 proceeding instead of caving to the neighbor’s unreasonable demands. In our filings in the §881, TWW showed that the neighbor had previously agreed orally to the access, and that, regardless, any claim for damage could not stand in the way of our client’s work, and by extension its access, under RPAPL §881. TWW also argued that, in light of the neighbor’s unreasonable refusal to discuss an access agreement, it should be denied legal fees or a license fee – both of which are commonly granted in connection with §881 proceedings.

In an order issued just hours after oral argument, the Court granted the co-op access, and in a substantial victory, the Court also denied the neighbor’s request for reimbursement of its legal fees and granted it only a nominal license fee.

A similar outcome was had in another recent case.1[1] There too, the petitioner was seeking access to install protections on a neighboring property. The neighbor had demanded, without justification, a two-million-dollar escrow. The court found that the neighbor’s “palpably unreasonable demands” evidenced a failure to negotiate in good faith with regard to the access agreement. As such, the court declined to award the neighbor engineering or attorney’s fees, and awarded only a “modest” license fee of $500.00 per month.

These cases demonstrate that neighboring property owners are likely to get the best deal by negotiating an access agreement in good faith, rather than holding out for a windfall.

Construction projects are picking up in volume, after a shutdown during the first part of Covid. Property owners who are planning projects or whose neighbors are planning work should consult with experienced attorneys early on to protect their rights and interests.

1 TWW was not involved in this case.