Development—Court Grants Petitioner License to Temporarily Enter Adjacent Property To Facilitate Construction of Petitioner’s Construction Project Pursuant to Real Property Actions and Proceedings Law §881, Subject to Terms and Conditions

The court granted the petitioner’s property owner a license, pursuant to Real Property Actions and Proceedings Law (RPAPL) §881, “to enter upon a portion of the land of respondent (adjacent property owner), subject to several terms and conditions.”

The respondent was ordered to grant the petitioner, a limited non-exclusive license for access to the adjacent property by the petitioner and its construction team.

The terms and conditions of the license addressed, inter alia, a pre-construction survey, temporary protections, water-proofing work, monitoring equipment, the petitioner’s sole responsibilities at the petitioner sole cost and expense, for repairs to respondent’s property, a license fee of $2,500 per month, and a pro-rata per day for each partial month while any part of the “temporary protections” remained installed upon the respondent’s property or cantilevered over the property line. Subject to unavoidable delays, including delays related to weather, additional work required by regulatory and governmental inspections, labor shortages or strikes, governmental orders and all matters outside the control of the petitioner, the term for the license was limited to 24 months, “time being of the essence.”

However, the court provided that such time may be “extended pursuant to a written amendment to this License executed by all of the Parties hereto, of which consent shall not be unreasonably delayed, withheld or conditioned by” the respondent owner. The license included provisions for insurance, indemnification, notices and arbitration, etc.

The court acknowledged that RPL §881 does not permit the petitioner to “permanently encroach” upon the respondent’s property. The court also explained that “the sections of any boundary wall in which joists of (petitioner’s) building are encased constitute the wall shared by (petitioner) and (respondent owner’s) buildings (i.e., the party wall).” The court stated that the petitioner’s construction, “upon its own side of any such party wall, subject to the easement for the support of a (respondent’s) building, would not constitute a permanent encroachment upon a (respondent’s) building.”

Thus, the court held that the petitioner was “entitled to a license to conduct waterproofing as to any such section, as it will not constitute permanent encroachment upon a (respondent’s) property.”

However, court further stated that “whether the portions of the wall that do not encase the joists of petitioner’s building constitute an independent masonry wall belonging wholly to (the respondent) or are part and parcel of the party wall shared equally by both parties must be resolved in a declaratory judgment action.” The respondent had not yet served an answer and counterclaim seeking declaratory judgment relief.

Comment: This case is of interest since so many people who renovate buildings or construct new buildings need to encroach upon their neighbor’s property in order to do their construction work and to protect their neighbor’s property. This decision is helpful because it incorporates the provisions of the subject license agreement.

Adam Leitman Bailey, counsel for the petitioner, expressed gratitude for the court taking the time to address, inter alia, his adversaries’ “land bullying” and allowing his client to “build their dream home.” Adversary counsel did not comment.