Law: Access agreements with developers revisited by C. Jaye Berger

C. Jaye Berger, Law Offices of C. Jaye Berger

Some developers are learning the hard way that they cannot go on to neighboring properties and do whatever work they need to do without permission and an access agreement. While there may be work the developer “must” do and he can go to court to try to have the court grant him permission to allow access, the developer may be faced with what a court considers to be access on “such terms as justice requires.”

The court considers the fact that the neighbor did not seek out the intrusion on to its property. The neighbor may be losing the use of a portion of its property for a number of months. Where developers have tried to hold off on paying such license fees and legal fees until the work is done, the courts have said such payments should not be postponed. They should be paid contemporaneously with the access. The developer may even be required to post a bond to secure payment of the license fees.

These new cases balance out the relationship, since developers must think twice about trying to force neighbors to allow whatever they want. Not only are license fees required, but neighbors should be given copies of the plans and information on the work schedule.

Knowing this, developers should be more “open” to working harder to negotiate such agreements directly with neighbors without getting the courts involved. It is a cost of doing business. Having a happy neighbor makes it more likely that the project will proceed smoothly without stop work orders caused by angry neighbors and makes it more likely they will be able to work things out without court intervention.

C. Jaye Berger, Esq, is principal and an attorney at Law Offices of C. Jaye Berger, New York, N.Y.