New Amendments to RPAPL §881 Could Reshape Property Access Rights in New York
The New York State Legislature has passed amendments to Section 881 of the Real Property Actions and Proceedings Law (RPAPL), which governs when a property owner may access a neighbor’s land to complete construction or repairs. If signed by the Governor, these changes could significantly impact New York property owners, developers, and tenants.
Lowering the Standard for Access
Currently, owners must prove that access to an adjoining property is “absolutely necessary.” The proposed amendments ease this burden, allowing access whenever the work cannot be completed in a “commercially reasonable manner” without it. This shift gives owners greater flexibility, even if alternatives exist but are impractical or prohibitively expensive.
Expanding the Scope of Permissible Work
The amendments broaden what qualifies as “work” under RPAPL §881. Preconstruction surveys, monitoring equipment, scaffolding, staging, and other protective measures—previously outside the statute—would now be included. Even certain permanent encroachments, like tie-backs and underpinning, could be authorized for the first time.
Procedural and Cost Implications
The changes also introduce new obligations:
- Inclusion of tenants: Lessees, not just adjoining owners, must now be included in proceedings, potentially extending timelines for statute compliance.
- Compensation & fees: While neighbors remain entitled to reasonable compensation for use and occupancy during the access period, reimbursement of legal fees will no longer be automatic: recoverable only if bad faith or misconduct is shown (this being a significant shift from the statute as currently drafted). However, courts may still permit the licensee to cover reasonable architect and engineer review fees.
- Notice & insurance: Owners must provide advance notice, projected timelines, detailed plans, and proof of insurance naming both adjoining owners and lessees as additional insureds.
What This Means for You
These amendments could streamline the process for owners seeking access to adjoining properties, but they also bring new costs, responsibilities, and potential delays. Whether you are planning construction, responding to an access request, or managing property affected by these changes, proactive legal guidance will be critical.
At Kucker Marino Winiarsky & Bittens, LLP, we are closely monitoring the legislative process and stand ready to advise clients on how these amendments may affect their rights and obligations.
If you have questions about obtaining or granting access to adjoining property, or about how these proposed changes may impact you, please contact your trusted KMWB advisor.
Media Contacts:
Valerie Shutack
Kucker Marino Winiarsky & Bittens, LLP
(212) 869-5030
vshutack@kuckermarino.com