Clarifying Section 881: New York State may Soon Provide more Guidance on Neighbor Access Agreements

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When performing work on your property, there is often a need to access a neighbor’s property. This is nothing new. However, under the current scheme, there is no framework for whether that access is obtained through a negotiated agreement or through a lawsuit. Additionally, the result in terms of both access and costs varies wildly and is difficult to ascertain at the start of a project.

The good news is –

New York may be getting closer to providing more structure to neighbor access agreements through an amendment to Section 881 of the Real Property Actions and Proceedings Law (“Sec. 881”), which has existed since 1961.

Though the proposed amendment has not moved further since passage by the Senate in June of 2022, SB8430A would codify certain terms of a license enabling the court to grant and expand on the remedies currently only provided by case law. First, the amendment lays out when a court can grant a license, specifically providing for:

  • Preconstruction surveying
  • Installation, maintenance, inspection, repair, replacement, and/or removal of:
    • Monitoring devices
    • Protective coverings and structures
    • Sheeting and shoring and other bracing structures
    • Foundation and building supports, including permanent underpinning and similar encroachments
    • Flashing, sealing, or other weather-proofing
  • Temporary projections or intrusions into the airspace above the neighboring property
  • Construction project staging
  • Temporary or permanent relocation of vents, flues, etc.
  • Other measures as may be required by law or good construction practice

These items are broad reaching and provide courts with a variety of justifications for granting access to the neighboring sites. The proposed law represents a significant expansion of what courts have granted in the past as the amendment would explicitly include staging and permanent sheeting and shoring rather than just temporary incursions.

The proposed law additionally requires that any access granted by a court order come with certain conditions:

  • Reasonable notice to be provided before accessing the neighboring property
  • Good faith projection of schedule and duration of access
  • Providing documents reasonably required for the neighboring property to understand the nature of the access and of any materials or equipment to be placed on the neighboring property
  • Reasonable compensation to be paid to the neighboring property owner

These conditions, now mandated in judicially-established access, are already typical of privately negotiated agreements, and are unlikely to have any impact on the majority of neighboring property access agreements. What these conditions do not do, however, is provide detail and guidance – there is no direction on what constitutes reasonable compensation or notice for example, and this will likely result in continued inconsistency in both the private access agreement market as well as court-directed agreements.

What is not included

The most notable absence in the proposed new law, however, remains the lack of guidance regarding whether a simple, good-faith disagreement over access terms between parties could rise to the level of judicial intervention. While a court can award attorney’s fees if either party acts in bad faith or engages in willful misconduct, the proposed language does not discuss what level of disagreement or impasse will justify judicial intervention or attorney fees.

What does this all mean for you now?

While nothing in the new bill has any bearing on what is required or permitted in negotiated access agreements, it is likely that the parameters of negotiations between willing parties will be affected – though exactly how remains to be seen and will depend on how courts interpret those disputes that do come before them. The new law is unlikely to replace negotiated agreements, though the hope is that there will be more certainty and regularity across the board in the cases to come before the courts.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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