Enacted in 1968, Real Property Actions and Proceedings Law §881 has played an integral role in property owners’ ability to repair or build new property. By permitting temporary entry onto neighboring property, RPAPL §881 converts a trespass into a permissive act for the sole benefit of one party over another. However, the permission shall be given “upon such terms as justice requires,” in the words of the statute, and so long as the licensee pays for any damage caused by its entry.
In all cases, the licensor shall receive basic protections such as scope of work/time limitations and insurance/indemnification. License fees, however, have only been granted to the licensor when the access is for new construction, rather than mandatory work, the idea being that the licensor should not profit from its neighbor’s need to clear violations or otherwise maintain their property. However, in Van Dorn Holdings v. 152 West 58th Owners, the First Department has collapsed the 50-year-old mandatory work/new construction distinction and opened the door to license fees in both contexts.
