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

When people are renovating or constructing buildings in close proximity to neighboring buildings, they often need access to the neighboring property in order to do some of that work or to stage their equipment. In the best of all worlds, they would politely contact you or your property manager, well in advance of performing the work and discuss what is needed, the time frame and the logistics. On bigger projects, they might even draft up an “Access and License Agreement” for you to review with legal counsel, along with giving you copies of the plans for the work. They might ask to meet and discuss what they will need and even have a walk with you around the building.

However, in the real world, what often happens is a lot more awkward, messy and annoying. One morning you may hear that workers from the neighboring building came on to your property over the fence and actually did some work, hoping you would not notice while you were at work, except for the fact that they caused some damage on your property. One building saw that the neighbor erected pipe scaffolding in their back yard without asking anyone.  When a Board member confronted the workers, they said they had been given “permission,” even though the building did not have a Superintendent and there was no such person who could give permission. Other buildings may go on to their roof and find evidence that the neighbors contractors climbed on to the roof to do some work, again without asking.

When the parties have an opportunity to talk face to face, the intruding neighbor may say something like,  “We can do this the easy way or we can do it the hard way. “If you won’t allow me the access I need, I will just take you to court.” They say it so matter-of-factly that you might think that doing such a thing is not really a big deal. However, it is a big deal and that is what this article discusses.

There is a section of the Real Property Actions and Proceedings Law which allows an owner seeking to make improvements, whose property is situated so that he cannot make them without entering the neighboring premises, to get permission from the court, by commencing a special proceeding, when the neighbor has refused to allow it. The facts necessitating such entry must be described in detail in the court papers and the dates. The court may grant a license to enter on such terms “as justice requires.” The person asking for access is liable to the adjoining owner for any actual damages as a result of the entry. The standard used by the courts is one of “reasonableness.” The property must be protected, including the roof, skylights and other roof outlets of the adjoining building.

It is not like just asking the court to schedule an appointment. These are usually complicated petitions with affidavits from architects and engineers explaining why the work is needed and how it can safely occur. In other words, the neighbor cannot just threaten the neighboring building owner, they must show their good faith in making the request and demonstrate that they have tried to negotiate an agreement. There may need to be barricades erected and pedestrian protections in place. Sometimes the work involved may take several years to complete. There will need to be adequate insurance, indemnification for any loss or damage and rules regarding the work hours for the project. Vibration monitors will likely need to be installed on the property being entered to make sure no damage occurs.  Various parts of the building may need protective covering, including the roof.

Some parties coming to court may already have a history of trying to work out an Access Agreement, but be unable to finalize it. This may have occurred over a period of many months. Having a stalled project, with large carrying costs and possible rodent infestation, is never a good thing, so there is a lot of incentive to work things out. Such Access Agreements may or may not involve the payment of any money for such use, but developers may find that such deals will move faster and smoother with financial incentives, such as reimbursement of reasonable legal fees or loss of use, if the basement, for example, is taken over by the neighboring work crew. The neighbors will try to restrict that use to the extent possible. The license fee may be based on lost rental income and compensation to the owner for use the petitioner makes of the property. The court also has the authority to order a bond be given to secure possible damages and the payment of license fees.

These are just a few of the many issues that arise with such agreements in the context of potential and actual litigation over access.

C. Jaye Berger, Esq., is the principal of Law Offices C. Jaye Berger, New York, N.Y.