By David J. Pfeffer, Partner, Tarter Krinsky & Drogin LLP
In a major metropolitan setting, open space can be hard to come by. In New York City, the facades of many residential and commercial buildings extend right up to the property line, or near enough to prevent access to some exterior walls without encroaching on neighboring properties. As a result, it is often extremely difficult, if not impossible, to make repairs or renovations to an existing structure without physically entering onto an adjoining parcel.
Unfortunately for building owners and developers, the need to access an adjoining property does not automatically confer the right to do so; property owners have a right to quiet enjoyment of their own premises. These two distinct interests often lead to conflicts between developing owners and neighboring owners, whereby the developing owner requires access to the neighboring property to facilitate repairs to his own property, and the neighboring owner refuses to allow it.
When these conflicts arise, the parties are generally left with two options: (i) the parties can negotiate a mutually agreeable temporary license agreement, or (ii) the developing owner can seek a judicially issued license for temporary access to an adjoining property under Real Property Actions and Proceedings Law (RPAPL) § 881. A successful claim pursuant to RPAPL § 881 can permit a developing owner access to a neighboring property to effectuate repairs. However, in this situation litigation usually benefits no one. For the reasons discussed herein, a well-negotiated temporary license agreement is almost always preferable to a judicial license proceeding.
Unauthorized physical intrusions into a neighboring property are generally considered trespasses under the law, even when undertaken for a good reason (such as building repair). However, with RPAPL § 881, New York State lawmakers have acknowledged the public utility of facilitating necessary entry onto adjoining parcels for the purposes of repair and improvement, while making certain allowances for the protection of the neighboring owner’s rights.
Unfortunately, obtaining an RPAPL § 881 license can have negative consequences. First, there is no guarantee that a court will issue the license. If it does, the court may require bonds and insurance coverage on the part of the developing owner, and owners generally want to avoid judicial interference in such matters. Most importantly, obtaining access via a RPAPL § 881 license may irreparably damage the developing owner’s relationship with the neighboring owner. The stigma of bringing what amounts to a lawsuit to obtain entry can have potentially long-lasting and unforeseen detrimental effects on the property going forward.
Negotiated temporary license agreements are often a much more beneficial resolution for temporary access disputes. Firstly, they avoid litigation, the costs thereof, and the potential judicial oversight of development projects that can result. Second, temporary license agreements provide a greater opportunity for both parties to address their concerns and reach a mutually satisfactory resolution.
This differs from judicial proceedings, where one party generally emerges as a “winner,” and the other a “loser.” Reaching an agreement, rather than litigating in court, offers much greater prospects of nurturing a cooperative relationship between the parties going forward, which can have unforeseen benefits when future issues arise (as they always seem to). Third, and perhaps most importantly, the property owners have a better understanding of their own needs and the particulars of the project than any court ever will. A fairly negotiated temporary license agreement allows the developing owner and the neighboring owner to address their individual concerns more completely than a court-ordered license might.
A properly negotiated temporary license agreement should provide the developing owner with the needed access to the adjoining property, while simultaneously providing ample protection for the neighboring owner’s existing structures and use of the premises. The primary items to be addressed in any temporary license agreement are: (i) the license period; (ii) the scope of the license (work parameters); (iii) protective measures for the neighboring property; (iv) insurance and indemnification; and (v) a negotiated license fee.
Negotiated temporary license agreements represent the best chance to resolve a temporary access dispute for both developing and neighboring owners in a mutually satisfactory manner, and can avoid the bad blood often created by litigation. For assistance with your temporary license agreement, or any other aspect of your next construction project, contact one of Tarter Krinsky & Drogin LLP’s experienced Construction professionals.
.Y. County 2005).
