Courts are increasingly being called upon to decide disputes over access to a neighboring property during construction, and their guide is RPAPL § 881, titled “Access to adjoining property to make improvements or repairs.” However, because the statue is vague, a body of cases interpreting RPAPL § 881 has developed that has expanded on concepts only implied in the statute. A recent Appellate Division case confirms that the application of RPAPL § 881 can only be understood in light of the cases interpreting the statute.
A property owner who is renovating or constructing a new building often needs access to its neighbor’s property for a variety of reasons, including protecting it from falling debris or strengthening its foundation, as required by the building code. The neighbor does not always agree to allow access, sometimes because of concerns that the planned construction could harm its building or inconvenience its occupants. RPAPL § 881 provides relief for the party performing the construction—if it can meet certain conditions—by allowing a court to order access. The statute requires that:
The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires.
In light of this general language, the statute has been supplemented by case law.
In a short decision, Tory Burch LLC v Moskowitz, —N.Y.S.3d—, 2017 N.Y. Slip Op. 00243, 2017 WL 113165 (1st Dep’t 2017), the Appellate Division, First Department enforced the explicit and implicit limitations of RPAPL § 881, as spelled out in earlier cases. It found that the lower court exceeded the limits of RPAPL § 881 by requiring the neighbor to allow access even though the party seeking access had not yet obtained Department of Buildings (“DOB”) approval for its plans, and where the project was under a stop-work order. The court reasoned that in the absence of approved plans there was a failure to demonstrate the “reasonableness and necessity” of its request.
While the concept of “necessity” derives from “necessary,” which appears in the statute, RPAPL § 881 does not mention “reasonableness”. That standard has been adopted by the First Department, in Mindel v Phoenix Owners Corp., 201 A.D.2d 167, 620 N.Y.S.2d 359 (1st Dep’t 1994), which the Tory court cited, and has also been used in other Departments (see, e.g., Matter of Rosma Development LLC v. South, 5 Misc.3d 1014(A), 798 N.Y.S.2d 713 (Sup. Ct. Kings Co. 2004). The Mindel court found that “reasonableness” was an appropriate standard in determining whether the party entering its neighbor’s property had taken sufficient precautions to avoid potential injuries resulting from its work. Because the construction project in Tory had been stopped by the DOB, and lacked approved plans, it did not appear to the court that reasonable steps had been taken to address the safety of the neighboring property.
In Tory the Appellate Division also held that the lower court erred by approving “those items . . . that would be permanent encroachments” on the neighbor’s property. Courts have interpreted RPAPL § 881 as allowing only temporary access to a neighbor’s property because the statute requires the entering party to provide the “date or dates on which entry is sought,” thus ruling out any permanent intrusion for which a span of dates cannot be provided.
While the decision in Tory did not specify what the “permanent encroachment” was that it objected to, presumably it was referring to underpinning, which is the permanent extension of the depth of a building’s foundation. This conclusion is suggested because the Tory court supported its holding with a citation to Broadway Enterprises, Inc. v Lum, 16 A.D.3d 413, 790 N.Y.S.2d 402 (2nd Dep’t 2005), in which the Second Department held that underpinning is an impermissible permanent encroachment not allowed under RPAPL§ 881. (Other courts have reached the same conclusion about underpinning. See, Madison 96th Associates, LLC v. 17 East 96th , 121 A.D.3d 605, 608, 995 N.Y.S.2d 553, 556 (1st Dep’t 2014).)
The Tory decision underscores the importance of familiarity with prior cases when seeking, or opposing, a license under RPAPL § 881.
Steven Cramer, February 1, 2017