LICENSE TO ENTER ADJOINING PROPERTY GRANTED

RPAPL 881 provides:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules.  The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought.  Such license shall be granted by the court in an appropriate case upon such terms as justice requires.  The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

Does this apply to adjoining condominium units? That was the issue in Voron v Board of Mgrs. of the Newswalk Condominium, 2019 NY Slip Op 2913,2 Decided on April 26, 2019, Supreme Court, Kings County, Rothenberg, J.:

"RPAPL 881 is "a codification of well-settled principles of jurisprudence expounded by courts . . . dealing with conflicting interests of adjacent property owners" (Chase Manhattan Bank v Broadway, Whitney Co., 57 Misc 2d 1091, 1096 [Sup Ct, Queens County 1968], affd 24 NY2d 927 [1969]).
"A proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court . . .which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted" (Queens Coll. Special Projects Fund, Inc. v Newman, 154 AD3d 943, 943-944 [2017] [internal citations omitted]), lv denied, 31 NY3d 901 [2018]; see also Bd. of Managers of Artisan Lofts Condo. v Moskowitz, 114 AD3d 491, 492 [2014]). "Courts are required to balance the interests of the parties and should issue a license 'when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused'" (Bd. of Managers of Artisan Lofts Condo, 114 AD3d at 492 [quoting Chase Manhattan Bank, 57 Misc 2d at 1095]).

Here, the court finds that Petitioners have satisfied the statutory prerequisites of showing necessity and that neither the period of time requested nor the size of the area involved appears unreasonable. While the Unit 415 Owners assert that granting Petitioners access "is not simply an inconvenience, [but] it is extreme" because they have rented unit 415 to a family with an infant, Petitioners have established that those tenants have already vacated unit 415. The parties confirmed during oral argument that unit 415 is now vacant. Thus, granting Petitioners a limited license to access and perform work in the bathroom of unit 415 would not inconvenience any existing tenants.

Notably, licenses pursuant to RPAPL 881 have been granted to enter upon the adjoining neighbor's property even in situations where the proposed work is intrusive (see, e.g., N. 7-8 Inv'rs, LLC v Newgarden, 43 Misc 3d 623, 634 [Sup Ct, Kings County 2014] [license granted pursuant to RPAPL 881 where "the activities pursuant to the license will be more intrusive then a sidewalk shed or scaffold [because] Respondent will have a cantilevered balcony protrude 6 feet into his airspace, approximately 6 feet above his roof deck, for a year"]; Rosma Development, LLC v South, 5 Misc 3d 1014 [A] [Sup Ct, Kings County 2004] [license granted to developer of eight-story building, pursuant to RPAPL 881, to erect sidewalk bridging that would abut 10 feet onto the sidewalk of adjoining owner's property, as well as roof protection, for a period of twelve months]).

Importantly, RPAPL 881 affords the adjoining property owners adequate legal rights and remedies by subjecting the licensee to full liability "for actual damages occurring as a result of the entry." For such actual damages occurring as a result of the entry, the Unit 415 Owners have a cause of action against Petitioners under the statute, and, to insure payment of such damages, the court will require the maintenance of adequate insurance by Petitioners (see Sunrise Jewish Ctr. of Valley Stream v Lipko, 61 Misc 2d 673, 676-677 [Sup Ct, Nassau County 1969]). Additionally, the Unit 415 Owners will receive compensation for Petitioners' utilization of unit 415 during the time period of the license in a fair and equitable sum as set forth below. …"