RPAPL 881 Rewritten: What Property Owners And Developers Need To Know

In high-density places like New York City, property owners often cannot make repairs or improvements to their property without access to their neighbor's land. On December 5, 2025, Governor Hochul signed into law major amendments to Section 881 of the Real Property Actions and Proceedings Law (“RPAPL”)—the law that gives owners seeking to develop their land a right to petition the court to compel access to their neighbor's property. Developers will likely welcome the new legislation.

The old RPAPL § 881 was a single paragraph, light on specifics, that created an expedited process (a “special proceeding”) in New York Supreme Court wherein developers and landowners could obtain a court-ordered license to access neighboring properties for the purpose of making “improvements or repairs to real property.” The statute instructed courts to grant access “upon such terms as justice requires.” As a general rule, courts have interpreted justice to require, at a minimum: insurance and indemnification; repair of all damages to the adjacent property; professional fees, including attorney's fees for negotiation and litigation; license fees for use of the adjacent owner's property; and time limits on access. Panasia Estate, Inc. v. 29 W. 19 Condominium, 204 A.D.3d 33 (1st Dep't 2022).

The new Section 881 is considerably longer and more detailed than its predecessor. The amendments codify and make clearer many of the rules that courts had developed in deciding individual cases, and the amendments resolve certain questions that had divided the courts. For example, the new law clarifies that courts may issue licenses for certain permanent encroachments, “including, without limitation, wall ties, tiebacks, anchors, straps and underpinning.” Uncertainty around the status of permanent encroachments under Section 881 has proven to be major leverage for adjacent owners in negotiating access agreements. See Namdar Hughes Dev. LLC v. Hughes Terrace LLC, 2023 N.Y. Misc. LEXIS 16190 (Sup. Ct. Bronx Cnty. Mar. 28, 2023). The amendment's allowance for permanent encroachments on another's private property is likely to face constitutional scrutiny in court.

Consistent with existing case law, the amendments authorize courts to require that developers reimburse adjacent owners for professional fees (e.g., engineering and architecture expenses) spent in reviewing the developer's project. But in another potential win for developers, the new law will change how attorney's fees are negotiated and litigated in the Section 881 context. The amendments provide that attorney's fees are warranted when either party—the developer or the adjacent owner—“acted in bad faith or engaged in willful misconduct in seeking, denying, or conditioning” the license. The effect could be to make an award of fees the exception, rather than the rule, but courts will decide. Under the existing law as interpreted by courts, where the parties are at loggerheads in negotiating access and end up in court, the adjacent owner will typically be entitled to attorney's fees even if the developer's position was reasonable and held in good faith. This change in the law would seem to offer developers a significant negotiating advantage.

The law also includes certain provisions that benefit adjacent owners (but which are already the norm in well-negotiated access agreements), such as requiring: reasonable compensation for the use and occupancy of the premises; reasonable prior notice to the adjacent owner; that the developer provide a good-faith estimate of the dates and duration of access; that copies of relevant documents, such as plans, specifications, surveys, or engineering reports, be provided where access includes a right to install, maintain, inspect, repair, replace or remove devices, structures, materials or equipment on the adjoining property; and that the developer and any contractor, consultant or agent procure and maintain commercial general liability insurance for damage to persons or property that names the adjacent owner as an additional insured.

We will continue to follow legislative developments in this space, as well as important court decisions, and as always keep you updated with timely advisories.

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