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.