Understanding the Amended Law for Allowing Property Owners to Access a Neighbor’s Property
On December 5, 2025, Governor Kathy Hochul signed several amendments to RPAPL Section 881 into law. Section 881 governs court-ordered access to adjoining property to perform construction work. Initially, Section 881 was only one paragraph and created a special proceeding in the New York Supreme Court in which Developers could obtain a court ordered license to access adjoining properties for the purpose of making improvements or repairs to real property. The amendments are a result of judicial trends that have affected how courts evaluate requests for access and disputes over obtaining access. Section 881 is now more detailed than ever before and codifies the rules that courts have developed in deciding such special proceedings.
Key Changes
The following key changes were introduced to Section 881 by the Amendment:
Access for the Installation of Permanent Structures
First, the statute now allows a developer to seek permission to access an adjoining property to install permanent structures, such as underpinning, and other safety-related improvements; whereas previously a court was only permitted to order temporary encroachments. Pursuant to Section 881(3)(b), a licensee may seek permission to enter an adjoining property for:
The installation, maintenance, inspection, repair, replacement and/or removal of: (i) vibration, crack or optical monitoring devices on or within any existing improvements on the adjoining property; (ii) sheds, bridges, netting or other protective covering over the roof, facades, windows, skylights, mechanical equipment, chimneys or other exterior portions of buildings or yards, walkways, driveways or other open areas on the adjoining property; (iii) scaffolding on or over the adjoining property; (iv) sheeting, shoring, bracing or other retaining structures needed for demolition, support or excavation; (v) where required by code, regulation or local law, any necessary foundation or building supports, including, wall ties, tie-backs, anchors, straps and underpinning, for any demolition, new or existing improvements on the premises of the licensee or adjoining owner, including, party walls; or (vi) flashing, sealing or other materials or equipment needed to establish the weather-proof integrity of any wall, foundation or other exterior portion of a building on the adjoining property.
Standard of Proof: “Commercially Reasonable”
Also, the standard of proof required to obtain access has been amended. Pursuant to Section 881(2), developers must now prove that the improvements that they seek to make on real property cannot be made in a commercially reasonable manner without access to the adjoining property. Whereas the prior standard of proof required a showing that the improvements or repairs could not be made without access. As a result, a court will now bear the responsibility of considering whether other reasonable alternative construction practices exist prior to granting a developer-licensee’s petition for access to an adjoining property. This amendment will likely make it easier for developers to demonstrate that certain work and access are necessary.
Joinder of Tenants on Adjoining Property
Further, Section 881(2) now requires adjoining property owners to identify their tenants upon request so that the tenants may be joined in a Section 881 proceeding. This amendment was added to reduce disputes over whether a license binds occupants who were not parties to a Section 881 proceeding. However, this change creates a risk of increasing the duration of litigation if numerous tenants are involved in a Section 881 proceeding.
Disclosure Obligations
The amendment also clarifies a developer’s pre-access disclosure obligations. Developers must provide advance notice to adjoining property owners and must furnish relevant documents, including but not limited to “copies of any plans, specifications, surveys, engineering reports or evidence of insurance for the work to be performed on adjoining property.” RPAPL Section 881(1)(a). Further, developers are required to provide a schedule reflecting a “good faith projection of the dates and estimated duration of any entry to the adjoining property.” RPAPL Section 881(4)(b). If a developer is unable to use commercially reasonable efforts to adhere to the provided schedule, they will be required to submit a request to the court to grant a license extension.
Silence Equals Refusal
Section 881(1)(d) provides that an adjoining property owner’s silence constitutes a refusal. A refusal will be deemed where “more than one written notice has been served, by certified mail, on the owner and has not been responded to within sixty days.”
Compensation and Reimbursement to Adjoining Property Owner
Additionally, while courts have long required compensation to an adjoining property owner as a condition for access, the statute now expressly requires reasonable compensation to “the adjoining property owner for the loss of use and enjoyment of the adjoining premises, including diminution in value.” RPAPL Section 881(4)(e). This change to Section 881 marks a major shift as previously a developer-licensee was only statutorily liable for actual damages to an adjoining owner’s property that resulted from the developer-licensee’s entry. However, the statute remains silent on and does not provide guidance on how such compensation should be calculated leaving this topic to be negotiated between developer-licensees and adjoining property owners.
Section 881(5)(b) further provides that a court shall be authorized to require a developer to reimburse an adjoining property owner for reasonable fees incurred in connection with the review of relevant documents relating to protective installations and access work.
No Access to Property Owned, Leased, or Occupied by a State Entity
Lastly, it is important to note that “where the adjoining property to which the licensee seeks access is owned, leased, or otherwise occupied by a state entity, the court shall not grant a license. RPAPL Section 881(6). This exception includes property owned, leased, or occupied by the Metropolitan Transportation Authority (MTA) and its affiliates.
Impact on the Court’s Authority
RPAPL Section 881(5) greatly expands the authority of a court in granting a developer-licensee’s petition for access to an adjoining property.
First, courts are now empowered to consider evidence as to whether either party failed to comply with the terms of a past or present license concerning the same property that is at issue. Section 881(5)(a).
Also, as previously stated, under Section 881(5)(b) courts now have the authority to order a developer-licensee to reimburse an adjoining property owner for reasonable fees incurred related to the review of documents, including, but not limited to “documents for the installation, maintenance, inspection, repair, replacement or removal of devices, structures, materials or equipment on the adjoining property.” However, the statute is silent on whether courts will require developer-licensees to reimburse adjoining property owners for legal fees associated with Section 881 proceedings, and the negotiation and drafting of license agreements. In practice, adjoining property owners are typically reimbursed for such legal fees.
Lastly, Section 881(5)(c) provides that a court is now authorized to insure for damage to property and persons if there is a “unique, physical occurrence causing physical damage to property or persons caused by the access.”
Conclusion
All in all, the new amendments to the statute codify years of case law on RPAPL Section 881 special proceedings and provide clarification on many questions that have arisen during such special proceedings.