Real Property Law

Neighbors Must Permit Access for Neighboring Construction

Matter of Rosma Development, LLC v. South

NYLJ 11/1/04, p. 19, col. 1

Supreme Ct., Kings Cty

(Schmidt, J.)

In a proceeding pursuant to RPAPL 881, a developer sought an order granting it a license to enter upon neighboring land to erect sidewalk bridging and roof protection. The court granted the order, conditioned upon payment of compensation, holding that neighbors are not entitled to impede as-of-right development by withholding permission to use their parcels for access.

The developer has permits to build a new 8-story building between two 4-story buildings owned by two separate neighbors. The developer sought permission from the neighbors to enter upon their property to erect bridging that would protect pedestrians below the construction area, and to erect roof protection to protect the neighbors' buildings from debris. The neighbors refused to grant permission, prompting developers to seek a license pursuant to RPAPL 881. Neighbors opposed the license, contending that the statute was inapplicable because the new building did not constitute a repair or improvement within the meaning of the statute, and also emphasizing the temporary and permanent harm they would suffer due to construction of the eight-story building.

In awarding the license to the developer, the court first concluded that the proposed new building constituted an improvement within the meaning of the statute, and then noted that neighbors cannot derail an “as of right” building by withholding access to their property. The court noted that if the developer's construction causes any harm to the neighbors, neighbors would be entitled to money damages for any harm caused. In addition, the court held that each of the two neighbors is entitled to compensation of $2500 per month for the value of access to their property during the period of construction. Finally, the court required developer to provide liability insurance naming the neighbors as additional insureds.

COMMENT

RPAPL 881 allows a property owner to petition for a license to enter an adjacent property for repair or improvement to his own property, when the adjacent owner denies such access. The statute requires courts when granting a license to engage in an equitable inquiry to weigh the license's effect on the rights of the respective property owners; a denial ensures that the repair or improvement is never made, while a grant of a license creates an inconvenience for the adjacent property owner. Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc.2d 1091, 1095-96, affirmed, 24 N.Y.2d 927 (granting a license to enter for repairs on a wall built to the lot line). Courts routinely grant RPAPL 881 licenses, unless the use sought is not for the repair or improvement of the licensee's property. See 79th Realty Co. v. McNally, 10/17/90 N.Y.L.J. 21, (col.3) (denying application of RPAPL 881 to do repairs on a neighbor's property); Foceri v. Fazio, 61 Misc.2d 606 (denying use of the statute to enter another's property where the repair would create an encroachment on the adjacent parcel). Rosma seems to be the first time a judge has required compensation for the adjacent owner's inconvenience as a condition to granting of a license.

Perhaps the Rosma court came to its determination based on the length of time that the adjoining neighbors had to endure the sidewalk bridges and roof covers. Here, the license granted the access to the adjacent properties for 12 months. By contrast, other courts granting a RPAPL 881 license have done so for shorter time frames. See e.g., Chase, 57 Misc.2d at 1097 (30 day license to repair water-damaged wall); Sunrise Jewish Center of Valley Stream, Inc., v. Lipko, 61 Misc.2d 673, 676-77 (25-day period to apply stucco siding).

Before Rosma, courts did not charge the licensee rent or fees for the adjacent property owner's inconvenience; instead, they cited the statutory remedy allowing the adjacent property owner a cause of action for any actual damages associated with the licensee's entry onto their property. RPAPL 881; Chase, 57 Misc.2d at 1094-96. Damages have typically reflected items like broken fences and the destruction of rosebushes. Sunrise Jewish Center, 61 Misc.2d at 676. Damages have generally been assessed only after the access period is completed, although the licensee may be required to post a bond to ensure financial capital to pay for any actual damages. Id. at 677 (the court required a creation of a $2000 security bond, released to the adjacent property owner upon a determination of damages or refunded to the licensee if no finding of such damage occurred).

Neighbors Must Permit Access for Neighboring Construction

Matter of Rosma Development, LLC v. South

NYLJ 11/1/04, p. 19, col. 1

Supreme Ct., Kings Cty

(Schmidt, J.)

In a proceeding pursuant to RPAPL 881, a developer sought an order granting it a license to enter upon neighboring land to erect sidewalk bridging and roof protection. The court granted the order, conditioned upon payment of compensation, holding that neighbors are not entitled to impede as-of-right development by withholding permission to use their parcels for access.

The developer has permits to build a new 8-story building between two 4-story buildings owned by two separate neighbors. The developer sought permission from the neighbors to enter upon their property to erect bridging that would protect pedestrians below the construction area, and to erect roof protection to protect the neighbors' buildings from debris. The neighbors refused to grant permission, prompting developers to seek a license pursuant to RPAPL 881. Neighbors opposed the license, contending that the statute was inapplicable because the new building did not constitute a repair or improvement within the meaning of the statute, and also emphasizing the temporary and permanent harm they would suffer due to construction of the eight-story building.

In awarding the license to the developer, the court first concluded that the proposed new building constituted an improvement within the meaning of the statute, and then noted that neighbors cannot derail an “as of right” building by withholding access to their property. The court noted that if the developer's construction causes any harm to the neighbors, neighbors would be entitled to money damages for any harm caused. In addition, the court held that each of the two neighbors is entitled to compensation of $2500 per month for the value of access to their property during the period of construction. Finally, the court required developer to provide liability insurance naming the neighbors as additional insureds.

COMMENT

RPAPL 881 allows a property owner to petition for a license to enter an adjacent property for repair or improvement to his own property, when the adjacent owner denies such access. The statute requires courts when granting a license to engage in an equitable inquiry to weigh the license's effect on the rights of the respective property owners; a denial ensures that the repair or improvement is never made, while a grant of a license creates an inconvenience for the adjacent property owner. Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc.2d 1091, 1095-96, affirmed, 24 N.Y.2d 927 (granting a license to enter for repairs on a wall built to the lot line). Courts routinely grant RPAPL 881 licenses, unless the use sought is not for the repair or improvement of the licensee's property. See 79th Realty Co. v. McNally, 10/17/90 N.Y.L.J. 21, (col.3) (denying application of RPAPL 881 to do repairs on a neighbor's property); Foceri v. Fazio, 61 Misc.2d 606 (denying use of the statute to enter another's property where the repair would create an encroachment on the adjacent parcel). Rosma seems to be the first time a judge has required compensation for the adjacent owner's inconvenience as a condition to granting of a license.

Perhaps the Rosma court came to its determination based on the length of time that the adjoining neighbors had to endure the sidewalk bridges and roof covers. Here, the license granted the access to the adjacent properties for 12 months. By contrast, other courts granting a RPAPL 881 license have done so for shorter time frames. See e.g., Chase, 57 Misc.2d at 1097 (30 day license to repair water-damaged wall); Sunrise Jewish Center of Valley Stream, Inc., v. Lipko, 61 Misc.2d 673, 676-77 (25-day period to apply stucco siding).

Before Rosma, courts did not charge the licensee rent or fees for the adjacent property owner's inconvenience; instead, they cited the statutory remedy allowing the adjacent property owner a cause of action for any actual damages associated with the licensee's entry onto their property. RPAPL 881; Chase, 57 Misc.2d at 1094-96. Damages have typically reflected items like broken fences and the destruction of rosebushes. Sunrise Jewish Center, 61 Misc.2d at 676. Damages have generally been assessed only after the access period is completed, although the licensee may be required to post a bond to ensure financial capital to pay for any actual damages. Id. at 677 (the court required a creation of a $2000 security bond, released to the adjacent property owner upon a determination of damages or refunded to the licensee if no finding of such damage occurred).