Accessing Adjoining Property

Often, a landowner or lessee wants to make improvements, modifications or repairs to their property (including buildings, houses, etc.) and the real property is situated in such a way that the repairs or improvements cannot be made by the lessee or owner without entering the premises of an adjoining owner or that owner’s lessee. Many times, an agreement is reached between the two parties and entry is granted. This situation can arise especially often where buildings or residences are attached or connected.

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On occasion, however, the neighbor refuses to grant permission for such entry. When entry and access are refused, the lessee or owner wishing to make such repairs or improvements may commence a special proceeding pursuant to RPAPL § 881 for a license to enter. Our White Plains based real estate litigation lawyers can assist you with this process. If any petitions or affidavits are filed, they must state facts which show that entry is necessary and the date(s) on which entry is sought.

The license must be granted by the court, but only when necessary, under reasonable conditions, and where inconvenience to the adjacent property owner is relatively slight compared to the hardship of the neighbor if the license is refused. The statute further provides that the licensee is liable to the owner’s lessee or adjoining owner for the actual damages that occur from the entry taking place.

Conditions such as the time, area, duration and scope may all be placed upon the party seeking to enter or filing the Petitition and insurance may be required before entry.

These situations are fact-specific, as the real estate litigation attorneys at our White Plains firm understand. Obviously, a lot would depend on your relationship with your neighbor. Many times, resorting to court intervention is not required as most, but not all, neighbors agree on an amicable solution. However, no matter how friendly your relationship with your neighbor is, you must insist on a written agreement wherein your neighbor agrees to reimburse you for damages.

These damages may include, but are not limited to, worker injuries, pedestrian injuries, property damage, etc. Furthermore, your neighbor must agree to pay any legal fees you might incur in the event that something does go wrong. This written agreement should be drafted by an experienced White Plains real estate litigation attorney.

As in most situations it is always better to negotiate and settle these issues amicably rather than resort to litigation. Court should only be a last resort. If you are going to Court it is important to remember some key points:

• It must be shown that entry onto the adjoining property is necessary rather than more convenient.
• Judges may differ about what costs may be borne and by whom, protections that should be put in place and other conditions of entry so that both sides take on a certain risk when litigating.

These issues can be complex and heated. It is best to consult with an attorney about your legal options and responsibilities. Please feel free to contact the team at Tilem & Associates, PC for a free, no-obligation consultation.