Do Good Fences Make Good Neighbors? Obtaining Access for Repairs & Improvements

 With land so developed, it is sometimes impossible for New York City property  owners to build, repair or improve their own property without accessing their  neighbor’s. But 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.  

 This problem is significant 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 this is a situation where under New York City’s Local Law 11 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 property would be made simpler through access to their  neighbor’s. 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  resulting from the refusal of the license stands to outweigh the inconvenience  to the neighboring property owner.  

 All that is required under a Section 881 proceeding is that the cooperative or  condominium association under construction files the necessary papers with the  court showing the facts making the entry necessary and providing 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.  

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