Most New York construction professionals, developers, and property owners associate RPAPL § 881 with adjacent construction projects. The statute is frequently used to obtain court-ordered access to neighboring properties for scaffolding, inspections, protections, and other temporary construction-related activities. A recent decision from the Appellate Division, Second Department, however, demonstrates that RPAPL § 881 has broader applications.
In Matter of Dursi v. Coffey, the Second Department affirmed an order granting neighboring property owners temporary access to adjoining land for the purpose of removing invasive bamboo growth and installing a bamboo root barrier designed to prevent future encroachment.
The Dispute
The parties owned neighboring residential properties in Nassau County separated by a fence. The respondents had planted bamboo in their backyard. Over time, the bamboo spread underground and began growing not only in the petitioners’ backyard but also inside their detached garage.
According to the petitioners, the bamboo continued to spread despite efforts undertaken by the neighboring owners to remove it. Because the bamboo rhizomes extended beneath the property line and beneath the petitioners’ garage, the petitioners sought permission to enter a portion of the neighboring property in order to excavate a trench, remove the invasive root system, and install a root barrier.
When access was refused, the petitioners commenced a proceeding pursuant to RPAPL § 881.
The Court’s Analysis
The Second Department reaffirmed the familiar rule that RPAPL § 881 permits a court to grant a temporary license to enter adjoining property when access is necessary to make improvements or repairs and permission has been denied.
Importantly, the Court emphasized that these proceedings are governed by a balancing test. Courts must weigh the hardship that would be suffered by the applicant if access is denied against the inconvenience that would be experienced by the neighboring property owner if access is granted.
Among the factors courts may consider are:
- The nature and scope of the requested access;
- The duration of the requested access;
- Available protections for the neighboring property;
- Whether there are alternative means of performing the work;
- The public interest involved; and
- Available compensation for any resulting inconvenience or damage.
Applying those factors, the Court concluded that the requested license was reasonable. The petitioners submitted expert evidence demonstrating that the bamboo was invasive and spread aggressively through underground rhizomes. The expert further explained that installation of a root barrier would help prevent future encroachment.
Although the Court noted that portions of the expert’s opinions exceeded his area of expertise, it nevertheless found the remaining opinions sufficient to support the petition. Significantly, the respondents failed to submit any competing expert evidence.
The Court also emphasized that the requested access was extremely limited. The license authorized only a single day of access for remediation and installation of the barrier. Under those circumstances, the inconvenience to the neighboring owners was minimal when compared to the ongoing harm caused by the invasive bamboo.
Why This Decision Matters
The decision serves as an important reminder that RPAPL § 881 is not limited to construction access disputes. The statute may be available whenever temporary entry onto neighboring property is reasonably necessary to protect, repair, maintain, or improve one’s own property and the neighboring owner refuses consent.
For owners facing encroaching tree roots, invasive vegetation, drainage issues, retaining wall concerns, or similar property conditions, Dursi v. Coffey demonstrates that RPAPL § 881 can provide an effective judicial remedy even when the dispute does not arise from a construction project.
The case also underscores the importance of presenting competent expert proof. The petitioners prevailed largely because they offered evidence explaining the nature of the bamboo intrusion and the necessity of the proposed remediation, while the opposing property owners offered no expert evidence to rebut those opinions.
As RPAPL § 881 continues to evolve, courts appear increasingly willing to apply the statute flexibly where limited access is necessary and the equities favor granting relief.
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Related adjacent construction resources
These related resources cover excavation, underpinning, access agreements, adjacent property damage, and New York construction disputes involving neighboring properties.
