When properties are close together, it can be difficult to repair or make improvements to your own property without accessing a neighbor’s property. Particularly within New York City, you will often be required to place protective structures on your neighbors’ property in order to get a permit. While the best solution to obtain access is to negotiate directly with your neighbors, what if negotiations fail? How can you still gain entry to the other property?
In certain circumstances, courts will direct adjoining property owners to provide access. The rationale behind the law is to encourage development and maintenance of real property. A property owner who requires access to a neighbors’ property can get a court order by commencing a proceeding under Section 881 of New York’s Real Property Actions and Proceedings Law (RPAPL). This section applies when an owner seeks to make improvements or repairs to property which cannot be done without access to neighbor’s property, and the neighbor has rejected the request for access. The application must specify the time period for which access is needed. The matter is heard by the court via a special proceeding, which is expedited with limited rights to discovery.
When granting an order directing a neighbor to provide access, the court can impose such conditions “as justice requires.” In deciding whether to issue an order, the court will look at factors such as:
- Whether repairs/improvements are required or elective. It’s not enough that the work would merely be helpful. It must be a necessity.
- Length of time for which access is required.
- The extent neighbor’s use is impacted.
Negotiating an agreement is preferable to going to court because the court has broad discretion to impose conditions on the use of the neighbors’ property. These conditions can include requiring an owner to provide insurance coverage for the neighbor; to post a bond or undertaking in favor of the neighbor; or even to pay a license fee. The owner may also have to pay the neighbor’s attorney fees and any other costs the neighbor may have under the rationale that the work is for the owner’s benefit, not the neighbor’s.
Regardless of whether access is granted by agreement or court order, the owner is liable for actual damages to the neighbor’s property related to the access.
Any time a property owner needs entry to an adjoining property in order to do work, it is good practice to consult an attorney. Even if the parties can negotiate an agreement, it is beneficial for an attorney to document the terms, including what will be done and when, the responsibilities of the parties, and liability and insurance provisions.
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