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.  

 A Simple Fee?

 The court will impose reasonable conditions upon the issuance of the license,  and the party needing 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 that the property rights of any tenant of the adjoining  property owner may be considered, particularly if there are concerns over  safety. The co-op or condo under construction can also expect to be held liable for  damages to the adjoining property resulting from the work being done, 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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