As we all know, building in a place like New York City is complicated and expensive. The space constrictions present an added challenge – the necessity of gaining access to neighboring properties to facilitate construction or protect the neighboring property during the construction process.
There are a variety of reasons why a neighboring building or construction company may need to access neighboring properties during a project. For example, they may need to install scaffolding or other equipment, or they may need to temporarily store materials or equipment on the neighboring property.
Of critical importance, the New York City Building Code requires building owners to protect adjacent properties and pedestrians during the course of construction, excavation, demolition and various other activities that could pose a risk of harm to the neighboring properties, its occupants or nearby pedestrians. As a result, developers must often gain entry to neighboring properties to install protective measures ranging from foam or plywood roof protection, vibration monitoring, scaffolding, sidewalk sheds, netting or even underpinning to provide structural support to a neighboring building in connection with excavation.
An access agreement, or construction license agreement, is a legal contract between the owners of two or more adjoining properties that governs the terms for such access.
Some of the key issues that may need to be addressed in an access agreement include:
If an agreement cannot be reached—perhaps because the neighboring property owner refuses to negotiate, or demands onerous terms for access—a developer can seek a judicial license pursuant to Section 881 of the New York Real Property Actions and Proceedings Law (“RPAPL”).
RPAPL § 881 provides that, where permission to enter the adjoining property has been “refused,” the party seeking access may file a petition asking the court to grant the access, and that access “shall be granted by the court in an appropriate case upon such terms as justice requires.” Generally speaking, this means that the court will grant the license if it is satisfied that access is required but has been refused, and will order reasonable conditions to govern such access.
A petition under § 881 is a “special proceeding” which is generally adjudicated in a much more expedited fashion than a typical litigation commenced by Summons and Complaint. A petition filed under RPAPL § 881 petition should include the following:
The judge assigned to hear the petition will determine whether the access is necessary and, if so, will either impose license terms of the court’s choosing or, very commonly, will attempt to assist the parties in negotiating the terms of access so that the case can be settled voluntarily in a way that fairly addressees the parties’ respective concerns.
In the video below, Bradley Pollina and Cooper Knowlton dive deeper into construction access agreements – explaining the process of entering one of these agreements, the key provisions that they should include and strategies for resolving disputes that may arise when negotiating the terms or attempting to enforce one of these contracts.
If you have any questions about access agreements or RPAPL § 881 litigation, please let us know. At BFKP, our attorneys can help you negotiate and enforce access agreements, and litigate § 881 petitions, for construction projects in New York City.