Construction License Agreements and Proceedings Under Real Property Actions and Proceedings Law §881

The geography of New York City presents unique challenges to developers, as buildings are packed together so tightly that it can be difficult or impossible to complete a construction project without accessing the property of a neighbor. Section 3309 of the New York City Building Code requires contractors to place protection measures, like netting or sheds, across the property line to guard neighboring persons and property against harm. Sometimes certain construction operations can only physically be done while standing on the property next door. Such access to neighboring property is a trespass, even when done with the goal of protecting the neighbor’s building. It is necessary to negotiate a temporary license agreement for permission to access a neighboring property. Usually, the licensee must provide a host of protections to the licensor, including insurance and indemnification. It is also common for the licensee to pay a license fee during construction to compensate the licensor for the inconvenience of the trespass.

Our firm has negotiated such agreements for properties all over the City and for projects of every size from renovation of single-family homes in the outer boroughs, to construction of forty-story buildings in midtown and downtown Manhattan. We know how to protect property owners.

If an agreement cannot be reached, a construction project can stall indefinitely. New York State law provides a remedy in Real Property Actions and Proceedings Law section 881, which enables a property owner to petition to the Court for temporary access to neighboring property to make improvements to its own property “upon such terms as may be just.”

In the past few years, due to the explosion in the number of construction projects around the City – and presumably also due to the number of inexperienced builders struggling to meet the demand – the number of “881” cases has skyrocketed. The courts of New York State have been issuing decisions on 881 petitions at a rapid clip, some of which have had profound effects on the rights and obligations of licensees and licensors. Our firm has vast experience in both initiating and defending 881 petitions.