CLIENT ALERT: New York Amends Statute Governing Adjoining Property Access

As of December 5, 2025, New York amended Real Property Actions and Proceedings Law Section 881 (“RPAPL 881”), the statute that enables courts to grant temporary licenses to adjoining properties for access during construction. Often, work on one property cannot be performed without access to a neighboring property. In addition, building codes require those doing work on their own property to place protections on adjoining properties, under certain conditions. RPAPL 881 allows those performing work on their property to obtain a court order granting a license to enter adjoining properties, where such access is necessary but has been refused. As property values have soared, RPAPL 881 litigation has increased. The amendment to RPAPL 881 appears to be an effort to provide more clarity to courts and litigants concerning adjoining access licenses.

The salient changes to RPAPL 881 include:

• Providing that a neighbor’s lack of response to written requests for access will be deemed a “refusal” to allow the requested access;
• Allowing that a license may be granted where the requested access is “commercially reasonable,” as opposed to strictly “necessary”;
• Defining (and expanding) the types of activities for which a license is permissible, including, significantly, wall ties, tie-backs, anchors, straps and underpinning – all of which have previously been considered permanent encroachments;
• Listing mandatory conditions for any license, including compensation to the adjoining owner for “the loss of use and enjoyment of the adjoining premises, including diminution of value”;
• Explicitly allowing courts to require that adjoining owners be reimbursed for fees incurred to review associated documents;
• Exempting any state entity from the statute.

Some of these changes may help guide neighbors in resolving requests for adjoining access, and thus encouraging negotiations. Other changes, however, seem ready-made for litigation. Expect constitutional challenges to the law on the basis that its grant of access for permanent structures constitutes a “taking.” Also, anticipate that litigants will hotly contest the “diminution of value” attendant to adjoining property access, and the scope of permissible fee reimbursement.

Please contact the Olshan attorney with whom you regularly work or the following Olshan attorney, if you would like to discuss further or have any questions.

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