Can I Enter into my Neighbor's Land to do Construction in New York, NY?

You can enter into your neighbor’s land to do construction if you have your neighbor’s consent or without your neighbor’s consent, if you have a court order.

Construction Where You Need to Enter your Neighbor’s Land

RPAPL § 881 allows an owner or lessee to make improvements or repairs to his own land using a neighbor’s premises, provided that such repairs or improvements cannot be made without the entering the neighbor’s land. Said provision states:

“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.”

RPAPL § 881 License Agreements

RPAPL § 881 license agreements are fairly common among adjoining property owners, when one property owner needs to enter a neighbor’s land in order to undertake improvements or revocations on his own land. In this license agreement, adjoining property owners negotiate the scope and terms of access that will be permitted, pursuant to the New York Department of Buildings Code. Sometimes, the scope and terms of access will include the installation of equipment, sheds, or scaffolding that are needed for support.

Provisions in the § 881 license agreements may include pre-construction works, sidewalk shed protection, temporary protections, scaffold and airspace access, security, roof protection, general protections, other licensee responsibilities, emergency access, code compliance, quality of life, insurance, indemnification, and term, to name a few.

When negotiations fail and a neighbor refuses entry, the adjoining property owner may seek a court-ordered RPAPL § 881 license to gain access to the property for limited purposes of improvements and repairs. The is usually resorted to by New York developers who need access to a neighbor’s property for the development of their project.

RPAPL § 881 Special Proceeding

A RPAPL § 881 special proceeding is initiated by the filing of a petition. In order for your petition to prosper, you must first show that you tried to seek permission from your neighbor to enter the premises but was refused. Usually, this permission takes the form of a notice to your neighbor, explaining the need for access, the specific provisions in the building code that you need to comply with and which supports your request for access, the scope of the work and the proposed terms and conditions.

After sending this notice, you can then negotiate with your neighbor regarding the acceptable terms and conditions of the RPAPL § 881 license agreement. When negotiations fail, you can file a petition under RPAPL § 881.

In determining whether to grant this petition, the court applies a reasonableness standard in balancing the potential hardship to the petitioner if the petition is not granted against the inconvenience to the adjoining owner if it is granted. Courts are more likely to grant the petition if the entry to the neighbor’s land is virtually unavoidable with no other feasible alternatives.

Entering a neighbor’s land to do construction in your own land can be a complex matter. It is important to be represented by an experienced lawyer when negotiating the terms and conditions of the RPAPL § 881 license agreement to ensure that provisions are included that can address different kinds of situations.

Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].