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.