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  • Posted on: Jul 24 2020

In our prior Blog “’Love Thy Neighbor’ Is Not Always the Case,” which should be reviewed in conjunction with the instant Blog, section 881 of New York’s Real Property Actions and Proceedings Law (the “RPAPL”) was explored.  Briefly stated, access to a neighboring property is sometimes necessary to improve or repair one’s own property (the “Work”).  In many cases neighbors can amicably resolve such access issues.  This can be done informally or through a formal access agreement.  When formal or informal voluntary access to a neighboring property is denied, §881 of the RPAPL, which provides a mechanism for court ordered access, can be relied upon to carry out the necessary Work.  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.

On July 23, 2020, the Appellate Division, First Department, rendered a decision in In re Meopta Properties II, LLC v. Pacheco, a case decided under RPAPL §881.  A simplified summary of the facts in Meopta based on a review of the e-filed documents in the underlying action follows.  Petitioner, Meopta, a developer, owned a townhouse sharing a party wall with respondent, Pacheco’s, townhouse.  Meopta commenced renovations of its property and, in conjunction therewith, constructed a stair bulkhead on the party wall.  The bulkhead encroached on respondent’s property.  After Pacheco commenced her own plenary action related to the work being performed by Meopta, Meopta obtained a building permit to remove and relocate the stair bulkhead.  In order to perform such work, and in order to provide NYC Building Code required protections and safeguards to Pacheco’s property, Meopta required access to Pacheco’s property but Pacheco refused.  Thus, petitioner commenced a special proceeding pursuant to RPAPL §881.  

The motion court’s order, as reviewed on the e-courts website, granted petitioner a license:

for 60 days in order to erect and maintain the necessary protections to respondent’s building while petitioner removes and relocates the roof stair bulkhead which currently is partially on the party wall and thereafter restore the party wall to the original height and install weatherproofing, etc. to petitioner’s easterly wall and install capstones.  Proper insurance to be acquired. 

The First Department affirmed the order of the motion court.  In so doing, the Court weighed the interests of the parties and found that “granting petitioner a 60-day license to access a limited exterior portion of respondent’s property for the purpose of performing remedial and protective construction work is reasonable and that any inconvenience to respondent will be slight compared to the hardship to both parties if the license is refused.  (Citations omitted.)  Interestingly, the Court also held that:

[a]lthough no license fee was granted, the court ordered petitioner to obtain and maintain insurance to protect respondent’s property interests.  RPAPL 881 merely makes the licensee “liable … for actual damages occurring as a result of the entry.”  If respondent incurs actual damages, she will have a cause of action against petitioner under the statute.

(Citations omitted, ellipses in original.)  Finally, the Court held that the motion court did not abuse its discretion in “declining to award attorneys’ and expert’s fees” to respondent “under the circumstances of this case.”

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