Insight

Development—Court Grants Petitioner License to Temporarily Enter Adjacent Property To Facilitate Construction of Petitioner’s Construction Project Pursuant to Real Property Actions and Proceedings Law

Development—Court Grants Petitioner License to Temporarily Enter Adjacent Property To Facilitate Construction of Petitioner’s Construction Project Pursuant to Real Property Actions and Proceedings Law §881, Subject to Terms and Conditions

January 5, 2022 11:27 AM

The court granted the petitioner’s property owner a license, pursuant to Real Property Actions and Proceedings Law (RPAPL) §881, “to enter upon a portion of the land of respondent (adjacent property owner), subject to several terms and conditions.”

The respondent was ordered to grant the petitioner, a limited non-exclusive license for access to the adjacent property by the petitioner and its construction team.

The terms and conditions of the license addressed, inter alia, a pre-construction survey, temporary protections, water-proofing work, monitoring equipment, the petitioner’s sole responsibilities at the petitioner sole cost and expense, for repairs to respondent’s property, a license fee of $2,500 per month, and a pro-rata per day for each partial month while any part of the “temporary protections” remained installed upon the respondent’s property or cantilevered over the property line. Subject to unavoidable delays, including delays related to weather, additional work required by regulatory and governmental inspections, labor shortages or strikes, governmental orders and all matters outside the control of the petitioner, the term for the license was limited to 24 months, “time being of the essence.”

However, the court provided that such time may be “extended pursuant to a written amendment to this License executed by all of the Parties hereto, of which consent shall not be unreasonably delayed, withheld or conditioned by” the respondent owner. The license included provisions for insurance, indemnification, notices and arbitration, etc.

The court acknowledged that RPL §881 does not permit the petitioner to “permanently encroach” upon the respondent’s property. The court also explained that “the sections of any boundary wall in which joists of (petitioner’s) building are encased constitute the wall shared by (petitioner) and (respondent owner’s) buildings (i.e., the party wall).” The court stated that the petitioner’s construction, “upon its own side of any such party wall, subject to the easement for the support of a (respondent’s) building, would not constitute a permanent encroachment upon a (respondent’s) building.”

Thus, the court held that the petitioner was “entitled to a license to conduct waterproofing as to any such section, as it will not constitute permanent encroachment upon a (respondent’s) property.”

However, court further stated that “whether the portions of the wall that do not encase the joists of petitioner’s building constitute an independent masonry wall belonging wholly to (the respondent) or are part and parcel of the party wall shared equally by both parties must be resolved in a declaratory judgment action.” The respondent had not yet served an answer and counterclaim seeking declaratory judgment relief.

Comment: This case is of interest since so many people who renovate buildings or construct new buildings need to encroach upon their neighbor’s property in order to do their construction work and to protect their neighbor’s property. This decision is helpful because it incorporates the provisions of the subject license agreement.

Adam Leitman Bailey, counsel for the petitioner, expressed gratitude for the court taking the time to address, inter alia, his adversaries’ “land bullying” and allowing his client to “build their dream home.” Adversary counsel did not comment.

Original Article

Trending Articles

Whistleblower Legislation Opens the Doors for More International Claims


by Justin Smulison

An Anti-Money Laundering Act, part of a recently passed Omnibus Budget in the U.S. Senate, is expanding protection for whistleblowers both domestically and internationally.

Shadow figure in spotlight against red and blue brick wall

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers Voting Is Now Open


by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Rising Transfer Taxes


by Angus C. Beverly

Transfer taxes in California are becoming a statewide trend with potentially national implications. Here is a breakdown of the effects in several cities.

State of California in orange with city in backdrop

Could Reign Supreme End with the Queen?


by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

Announcing The Best Lawyers in Australia™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Caffeine Overload and DUI Tests


by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

IN PARTNERSHIP

2022: Another Banner Year


by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office