RPAPL §881 provides an expedited process whereby a property owner or developer, who seeks to make “improvements or repairs” to that owner/developer’s real property, can commence a special proceeding to obtain a court order granting the owner/developer (the putative licensee”) a temporary license to enter the property of an adjoining owner (the putative “licensor”): (a) where the planned improvements or repairs cannot be made without entering the adjoining premises, and (b) where the adjoining owner has refused to give the needed permission. The statute is based in equitable principles, see Chase Manhattan Bank v. Broadway, Whitney Company, 57 Misc.2d 1091, 294 NYS2d 416 (Special Term, Sup. Ct., Queens Co.,1968), affirmed, 24 NY2d 927 (1969), whereby the court is empowered to grant the license, when, “in an appropriate case,” entry by the licensee to the adjoining premises is shown to be necessary and “upon such terms as justice requires.” The statute also makes the licensee liable to the adjoining owner licensor “for all actual damages occurring as a result of the entry.”

Although RPAPL §881 was described by a commentator, as recently as 2002, as a “little-used law” (as quoted in Rosma Development v. South, 5 Misc.3d 1014(A), 798 NYS2d 713 (Sup.Ct., Kings Co., 2004)(Schmidt, J.), it now clearly is no longer an overlooked and neglected statute. RPAPL §881 is now required reading for all attorneys with developer clients seeking to build in New York City. The statute should also be required reading for attorneys with clients whose properties abut those where demolition and new construction is planned to take place.

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