Section 881 of the Real Property Actions and Proceedings Law (RPAPL § 881) has long allowed an owner to seek judicial intervention in respect of a license to enter a neighbor’s property when access is needed to complete construction or repairs and voluntary access has been denied. Many parties, however, negotiate license agreements in lieu of seeking judicial intervention. Until recently, the statute, initially enacted in 1968, was brief and provided little about the types of access courts could grant or the terms of any license. That left parties and judges to rely on case law for guidance when negotiating access agreements.
On Dec. 5, 2025, Governor Kathy Hochul signed S-3799-C, an amendment to RPAPL § 881 that enacted procedures for owners seeking access and adjoining owners responding to those requests. The text of the law is available HERE. This client alert outlines the main changes.
Key Changes Of The Amended Statute
As amended, RAPL § 881 expands the rights of real estate owners and developers requiring access to neighboring properties to perform improvements or repairs. At the same time, the amendment adds new requirements that project owners must fulfill before seeking court intervention and includes compensation rules and other provisions that benefit adjacent owners.
Refusal And Timing: RPAPL § 881 now clarifies what constitutes an adjacent owner’s “refusal” of access. Accordingly, before a petition for judicial intervention can be filed, the party seeking entry to an adjoining property must now make at least two (2) written requests for access, delivered by certified mail, and then wait 60 days for a response. If a response isn’t received, that silence is deemed a refusal, and the owner may seek judicial intervention on that basis.
Permanent Work: Another notable modification concerns the permanence of improvements. Since RPAPL § 881 enactment, the legislative history and case law surrounding the statute made it clear that it pertained only to temporary access, and that courts could not grant access for projects that would result in permanent changes to the adjoining property. Under the amendment, courts may now grant access for certain permanent encroachments required by code, regulation, or local law, such as wall ties, tie-backs, anchors, straps, and underpinning, when no practical alternative is available.
Standard For Court-Ordered Access: Prior to the amendment, owners and developers had to show that the required work could not be performed without the requested access. The amended statute now only requires applicants to show that the planned work would not be “commercially reasonable” without entry onto the adjoining property.
Compensation: Courts must now consider reasonable license fees for loss of use and enjoyment of the adjoining premises, including any proven diminution in value. In addition, owners and developers may be required to reimburse the neighbor for reasonable professional fees incurred in reviewing plans, reports, and other technical materials related to the work and protections on the adjoining property.
Other Protections: Finally, the amendment requires owners and developers to identify tenants and other occupants who may be affected by the proposed work so they can be party to the judicial proceedings. The statute also carves out properties owned, leased, or occupied by the Metropolitan Transportation Authority and its affiliates, which remain subject to separate access arrangements.
The foregoing is not intended to be comprehensive nor constitute legal advice. If you would like to discuss your specific circumstances or would like more information, feel free to contact us at (212) 625-8505.