Property owners and developers frequently rely on RPAPL § 881 when neighboring property owners refuse access needed to complete construction projects. A recent decision from the Appellate Division, Second Department, serves as an important reminder that while courts are generally willing to grant necessary access, they are far less willing to shift the cost of obtaining that access to the neighboring owner.
In Matter of A&J 917 56th Street, LLC v. Raikakos, the petitioner sought a license under RPAPL § 881 to temporarily enter an adjoining residential property in Brooklyn in connection with the construction of a four-story residential building. The Supreme Court granted the requested license and also awarded the developer attorneys’ fees and costs incurred in bringing the proceeding. The neighboring owners appealed.
The Court Affirms Access Rights Under RPAPL § 881
The Second Department reaffirmed the well-established principle that RPAPL § 881 gives courts broad discretion to grant temporary access to adjoining property when such access is necessary to perform improvements or construction work and the neighboring owner refuses permission.
The court emphasized that RPAPL § 881 proceedings require a balancing of competing interests. Courts must weigh:
- The hardship to the applicant if access is denied;
- The inconvenience to the neighboring property owner;
- The nature and extent of the requested access;
- The duration of the access;
- Available protections for the adjoining property;
- Whether alternative means exist to perform the work;
- The public interest in completing the project; and
- Measures available to compensate the adjoining owner for damage or inconvenience.
Applying those factors, the Second Department found no abuse of discretion in granting the developer access to the neighboring property.
Attorneys’ Fees Are a Different Story
The more significant aspect of the decision concerns attorneys’ fees.
The Second Department modified the lower court’s order and vacated the award of attorneys’ fees and costs to the developer. The court reiterated a principle that has become increasingly important in RPAPL § 881 litigation: the neighboring property owner did not seek the intrusion and receives no benefit from it.
Because the adjoining owner is being compelled to permit access for someone else’s project, principles of equity generally require that the adjoining owner not bear costs resulting from the intrusion. As the court explained, a developer cannot recover its attorneys’ fees and costs incurred in bringing the RPAPL § 881 petition itself.
The court also noted that, under appropriate circumstances, attorneys’ fees may be awarded to the respondent property owner. However, in this case the neighboring owners had not requested such relief before the trial court, making the issue unavailable on appeal.
Practical Implications for Developers and Property Owners
This decision reinforces several practical lessons for parties involved in RPAPL § 881 disputes:
- Courts remain willing to grant access when it is genuinely necessary for construction.
- Developers should expect to bear the costs of obtaining that access, including their own legal fees.
- Neighboring owners should carefully consider seeking license fees, protections, insurance requirements, indemnification provisions, and attorneys’ fees where appropriate.
- Early negotiation often remains less expensive than litigating an RPAPL § 881 proceeding.
As construction projects continue to become denser throughout New York City and Long Island, disputes involving temporary access to neighboring properties are likely to remain common. This decision confirms that while RPAPL § 881 provides a powerful tool for developers, it is not intended to shift the financial burden of obtaining access onto the neighboring property owner.
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