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Imagine you are about to embark on that long-awaited, desired (and needed) construction project. You have been saving and planning for this project for a long time. The design is complete and the contractor is ready to go, and at that moment you are told that the scope of the construction requires you to enter upon your neighbor’s property. In fact, there is no alternative means of performing the construction without accessing your neighbor’s property and encumbering it in some way. What are your options? In the normal course of things, you, as the party requiring such access, would seek to obtain permission, or a license, to access your neighbor’s property. The terms and conditions governing such access would be contained in a license agreement (more about that below) entered into by you, as the party seeking access (i.e., the licensee), and your neighbor, the party granting such (i.e., the licensor). Clearly, this approach requires a willing and cooperative neighbor. However, what are you to do when such access is refused or an agreement cannot be reached? The answer lies in Section 881 of New York Real Property Actions and Proceedings Law (RPAPL), a somewhat old, but perhaps infrequently used statute that allows a project owner to petition a court for a license to enter upon a neighbor’s property. This article will briefly summarize the procedure for obtaining such court-ordered license and identify some practice pointers for potential litigants.

Terms of the Agreement

            Before examining the procedures for obtaining a court-ordered license pursuant to RPAPL §881, it would be remiss if this article did not provide a brief summary concerning certain, but certainly not all, terms that may be included in a license agreement, if one can be agreed to:

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