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The Changing Landscape of Access Agreements and RPAPL §881 Proceedings in New York City: Trends to Watch in 2019

November 30, 2018

Gaining access to a neighbor’s property during construction requires attempting to negotiate an access agreement and if that fails, litigating the access through an RPAPL §881 proceeding. That is nothing new. But what happens when these negotiations are about much more than just access or not about access at all?

An "access agreement” is increasingly no longer just an agreement for access to the neighboring property, as once was its sole intent.

Neighbors are now: digging (no pun intended) into the work hours on the site and trying to regulate same with late starts for noisy work or other restrictions during the day based on the neighbor’s use of their property; looking to the developer to address the neighbor’s encroachments onto the developer’s property or the closing up of impacted lot line windows, even though the duty lies with the neighbor; and/or simply viewing the neighboring development as an opportunity to have the developer make improvements to their property.

The design of the sidewalk shed, for instance, is a highly debated topic because it is not "on” the neighbor’s property. It is, rather, on the public sidewalk in front of the neighbor’s property but can impact commercial tenants on the ground floor, as well as second story windows. Further, neighbors are evaluating, commenting on and, at times, disputing and prohibiting excavation activities on the developer’s site, even though no access is being requested and long before a shovel has even entered the ground.

The courts seem to be entertaining these "non-access” objections in the context of RPAPL §881s, even though that proceeding is supposed to be related to access to the neighbor’s property.

A developer’s excavation can certainly impact a neighbor’s property even if the developer is not crossing over the property line. Further, a developer’s sidewalk shed, which extends in front of the neighbor, as required by the Building Code, may impact the neighbor’s tenants. Neither instance, however, involves actual physical access onto the neighbor’s property, yet these issues are heavily negotiated and perhaps more concerning, being litigated in the context of an RPAPL §881.

We seem to be sliding into dangerous territory where neighbors, more than or in addition to the Department of Buildings (DOB), are determining what is or is not safe and what construction may or may not be performed.

To further frustrate the process, the DOB does not typically like to get in the middle of these disagreements, since they view them as private disputes. It is noted that the DOB has not been immune to being sued by a concerned neighbor who alleged fault on the part of the DOB for approving plans and issuing permits to the developer, which is what occurred in a relatively recent New York Supreme Court case. So, the parties end up in court wherein a judge is reluctant to ignore a neighbor’s legitimate concerns, but does the court really have jurisdiction?

When did an agreement for construction protection become an agreement to allow the neighbor to govern the construction? On the other hand, what recourse can or should a neighbor have if there is reason to believe a developer’s excavation will damage their property, even though there are DOB-approved plans? There are no easy answers to such questions, even for someone like me, who has experience on both sides of the table and the courtroom.

How and whether courts will continue to entertain disputes between neighbors about construction, even if no damage has occurred and no access is required and/or whether or not the DOB will be compelled to take a more active role in these disputes will be interesting trends to watch in 2019.

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