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First Department Holds That Respondent Is Not Entitled To The Recovery Of Professional And Attorney’s Fees When It Successfully Defends An RPAPL 881 Proceeding And A License Is Not Issued To Petitioning Neighbor

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  • Posted on: Nov 4 2022

By Jonathan H. Freiberger

As discussed in prior Blog articles, property owners sometimes require access to a neighbor’s property to make repairs to their own property. Neighbors can amicably (with legal counsel or not) arrange for the requested access, which, in many cases, will involve a formal written access agreement.

Neighbors are not always neighborly, however, and refuse voluntary access.  In such cases, the party requiring access can seek court ordered access pursuant to section 881 of the Real Property Actions and Proceedings Law (“RPAPL”).  [Eds. Note: this Blog has discussed RPAPL 881 here, here and here.]  RPAPL 881 provides:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. 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. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

Our March 4, 2022 Blog article, entitled: “The First Department Addresses Reimbursable Fees Awardable Under RPAPL 881”, addressed issues relating to the reimbursement of certain costs and fees to neighbors burdened by court ordered access to their property when RPAPL 881 petitions are granted.  On October 27, 2022, however, the Appellate Division, First Department, decided Matter of 419 BR Partners LLC v. Zabar, in which the Court addressed fee shifting in cases where the respondent in a RPAPL 881 proceeding successfully opposes the petitioner’s application.

The facts of 419 BR are typical.  [Eds. Note: the facts were derived from the underlying supreme court decision.]  The petitioner in 419 BR brought an RPAPL 881 proceeding after failing to obtain consensual access to a neighbor’s property “to perform renovations and expansion of the existing building.”  Petitioner moved by order to show cause to perform certain work related to the project.  In support of its motion, petitioner submitted, inter alia, an affidavit from its professional engineer indicating that the proposed plans for the project were safe and would cause “minimal intrusion” to the neighbor, respondents.  In opposition to petitioner’s application, respondents urged, inter alia, that the proposed work was unsafe in many respects and violated Building Code.  Respondents also: refuted petitioner’s claim that access was refused as the parties were engaged in negotiations and, accordingly, the proceeding was premature; that the element of necessity has not been established; and, that the failure to name a 50% owner of the respondents’ property in the proceeding required dismissal of the petition.  Respondents also counterclaimed for, inter alia, an order: declaring the rights of the parties; declaring that the proposed plans do not adequately protect respondents’ property; preliminarily restraining and enjoining petitioner from performing work that did not comply with the Building Code; and, awarding to it legal and engineering fees pursuant to RPAPL 881.

Supreme court described RPAPL 881 as follows:

RPAPL 881 is a statute that stands in derogation of the existing common law regarding trespass and, thus, should be read narrowly. In determining whether or not to grant a license pursuant to RPAPL 881, courts generally apply a standard of reasonableness. Moreover, courts are required to balance the interests of the parties and should issue a license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused.  [Citations, internal quotation marks and brackets omitted.]

The court then proceeded to dismiss the petition on the ground that it was procedurally improper because the proceeding was not commenced against all owners of the neighboring property.

Supreme court added that had it reached the merits of the claim it would have denied the petition because:

Case law is clear that before it can grant a license pursuant to RPAPL 881, it is critical that the court be apprised of the exact nature, timing and extent of the work requiring the license. Upon considering the affidavit of [respondents’ engineer], this court finds persuasive that petitioner fails to establish that the plans relied upon in this proceeding adequately reflect the construction work it intends to perform on the adjoining property and that said plans address respondents’ concerns regarding, among other things, the impact said construction will have on the foundation and roof of said property. Thus, this court cannot determine, based on the plans petitioner submitted, and given the subsequent changes to the same, whether the work petitioner intends to perform will result in only a slight inconvenience to respondents. Moreover, petitioner’s claim that respondents have refused access is also belied by the papers in opposition to the petition, which demonstrate respondents’ attempt to negotiate the terms of the agreement and seek clarification from petitioner regarding its construction plans.  [Citations, internal quotation marks and brackets omitted emphasis in original.]

In addition, respondents sought legal and engineering fees as part of their counterclaims, a claim that supreme denied.  In so doing, supreme court stated:

While it is well-settled that, a property owner compelled to grant a license should not be put in a position of either having to incur the costs of a design professional to ensure petitioner’s work will not endanger his property, or having to grant access without being able to conduct a meaningful review of petitioner’s plans, if a respondent is successful in opposing an 881 petition and no license is granted then that respondent would not be entitled to attorneys’ fees for successfully opposing the petition.  [Citations, internal quotation marks and brackets omitted.]

Respondents appealed to the First Department, the denial of its claim for reimbursement of engineering and attorney’s fees.  The First Department affirmed supreme court’s order.  In so doing, the Court reiterated that attorney’s fees are only recoverable by a prevailing party in litigation when “authorized by statute, agreement, or court rule” and “[n]o such statute, agreement, or rule exists here”.  This is the “American Rule” on recovery of legal fees.  [Eds. Note: this Blog recently discussed the recovery of attorney’s fees and the “American Rule” [here].]  

The Court also explained that there was no statutory basis for the recovery of attorney’s fees under RPAPL 881 because “the statute does not authorize an award of fees where, as here, the neighboring property owner successfully defends against the RPAPL proceeding and the court does not grant the license sought” and, accordingly, “[i]n the absence of any statutory authority permitting the court to grant such fees where no license has been issued, an award of legal and professional fees is not authorized.”


Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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