Property lines in New York and especially in New York City are usually very close together – sometimes in what are referred to as “lot line” configurations (properties with building that abut each other with no space between them). Often times when a property owner seeks to make improvements or repairs to their property, for development purposes or just to comply with safety rules – such as “Local Law 11” in New York City, relating to the inspection and repair of masonry – such improvements and repairs cannot be accomplished without entering directly onto or working over the premises of the adjoining property owner. Fortunately, even if the adjoining property owner refuses to voluntarily grant access, Real Property Action and Proceedings Law (“RPAPL”) § 881 provides a mechanism to allow an owner (or lessee) to obtain a temporary license to enter onto the adjoining owner’s property to make such improvements and repairs. The general situations when access is required and the requirements to obtain the necessary license are discussed below.
Situations When Access Is Needed
There are two general situations where a property owner requires access to the adjoining property owner. The first situation is when the planned construction work by the property owner cannot be done without actually obtaining access to the adjoining property owner’s property or its airspace. The other situation is where the property owner must provide safety protections to protect the public and the adjoining property.
The first situation is pretty straight forward. In such a situation, a property owner actually needs to enter onto the adjoining property owner’s property or air space to obtain access to their own property to perform the work. For example, a property owner may seek to repair or stucco the side of the building that is on the property line. In such a situation, the property owner must actually obtain access to the adjoining property to perform the work on their own building.
In addition, many times a property owner is also required to provide safety protections before it can perform the construction work. Such safety protections include sidewalk sheds, roof protection or netting, vibration monitoring, underpinning and shoring protection. In such situations, a property owner requires access to the adjoining property owner’s property to install the necessary safety protections to ensure that their construction work can be performed in a safe manner. In either situation, a property owner can obtain a Court ordered temporary license to enter onto the adjoining property of a non-cooperative neighbor through a RPAPL § 881 proceeding.
Obtaining Access To Adjoining Property Owner’s Property
RPAPL § 881 allows a property owner to make improvements or repairs to their real property when such improvements or repairs cannot be made by the owner without entering the premises of an adjoining owner and permission to enter has been refused. “The statute recognizes the fact that property owners often build up to the building line, and it was enacted in furtherance of the public interest in preventing urban blight by making it possible to repair such buildings which otherwise would be inaccessible.” In particular, RPAPL § 881 provides that:
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.
Courts routinely grant licenses, pursuant to RPAPL § 881, for the use, access, mandated protection, and temporary support which is sought by a property owner provided that the use and access meets a standard of reasonableness. In considering whether to grant a license under RPAPL § 881, “the court must apply a ‘standard of reasonableness.”‘ 
In order to obtain a temporary license, a property owner must commence a special proceeding. Pursuant to RPAPL § 881, a license should be granted where: (i) “permission to so enter has been denied”; and (ii) “the property owners’ real property is so ‘situated that such improvements or repairs cannot be made by the property owners . . . without entering the premises of the adjoining property owners.'”
Essentially, in order to obtain a temporary license an owner must set forth the facts for making entry onto their neighbor’s property including alleging and establishing that: (a) the owner seeks to make improvements or repairs to its actual real property; (b) the repairs cannot be made without entering the premises of the adjoining property owner; (c) permission to enter the adjoining property owner’s property has been denied; and (d) the owner must also state dates that the entry is needed. The Court shall grant a temporary licensor in appropriate cases and may impose conditions on obtaining a licensor including license and other fees.
License Fees And Costs
Pursuant to RPAPL § 881, “[t]he licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry the party seeking.” Court’s will often require the licensee to pay all reasonable costs associated with the temporary license including the reasonable fees of the neighbor’s architect incurred in reviewing the owner’s plans and making counter proposals, as well as ongoing monitoring of the work during the term of the license; reasonable attorneys’ fees in negotiating the license; monthly license fee; and costs relating to the necessary steps the licensor takes to safeguard his property.
Important Issues To Negotiate As Part of License
When negotiating a license it is important to consider the actual construction and protective work to be performed, the actual access to be provided, the duration of the access, the contact person, whether the licensor needs to retain its own architect or construction consultant to confirm that the licensee is complying with the terms of the license.
Other important issues to contemplate when negotiating a license include: license and professional fees, pre-construction inspections and surveys, providing protection and construction plans, security for the adjoining property, providing and obtaining adequate insurance coverage, indemnification for damages and post construction damage assessments.
Whether you are the property owner seeking the license or the adjoining property owner, there are numerous issues to be considered before the work can be performed. Although RPAPL § 881 provides a mechanism for obtaining a temporary license, before moving to obtain a such license, both sides must consider the costs and risks associated with the construction work. In addition, the cost and time involved in pursuing a RPAPL § 881 Proceeding should also be evaluated, as negotiating a voluntary license with an adjoining property owner can often save time and money.
Whether you are the property owner seeking the license or the adjoining property owner and whether you seek to negotiate a voluntary license or pursue a RPAPL § 881 proceeding, Jaspan Schlesinger LLP can help you address the many issues related to construction on boundary lines and the issuance of temporary licenses to perform such work. If you need assistance, please contact Christopher E. Vatter at firstname.lastname@example.org or Charles W. Segal at email@example.com.
 Pursuant to New York City Department of Building Code, Chapter 33 of the Code, entitled: “Safeguards During Construction or Demolition”, expressly mandates that: “[a]djoining . . . private property . . . shall be protected from damage and injury during construction or demolition work . . . . Protection must be provided for … skylights and roofs” (see § 3309.1), as well as protection for pedestrians (see § 3307.1), and the placement of sidewalk shed to 20 feet past the building. See § 3307.6.2. and 3301.6.3
 1 NY Jur Adjoining Landowners § 5 (2) citing Sunrise Jewish Center of Valley Stream, Inc. v. Lipko, 61 Misc. 2d 673 (Sup. Ct. Nassau Cty. 1969).
 RPAPL § 881
 See e.g. Chase Manhattan Bank v. Broadway, Whitney Co., 59 Misc. 2d 1085, 1091 (Sup. Ct. Queens Cty. 1969) aff’d 24 N.Y.2d 927 (1969) (license granted as requested duration and area of access “not unreasonable.”).
 Matter of Rosma Dev., LLC v. South, 5 Misc. 3d 1014(A) at ***7 (Sup. Ct. N.Y. Cty. 2004), citing Mindel v. Phoenix Owners Corp., 210 A.D.2d 167, 167 (1st Dep’t 1994) (granting license under RPAPL § 881 and finding proposed license reasonable).
 Ponito Residence LLC v. 12th Street Apartment Corp., 38 Misc. 3d 604, 611 (Sup. Ct. N.Y. Cty. 2012); Matter of Lincoln Spencer Apts., Inc. v. Zeckendorf-68th St. Assoc., 88 A.D.3d 606 (1st Dep’t 2011) (“RPAPL 881 is the means by which a landowner seeking ‘to make improvements or repairs’ to its property may seek a license to enter an adjoining landowner’s property when those ‘improvements or repairs cannot be made’ without such entry.”).
 RPAPL § 881.
 Matter of North 7-8 Invs. LLC v. Newgarden, 982 N.Y.S.2d 704 (Sup. Ct. N.Y. Cty. 2014).
 Id. (Licensee required to pay the neighbor’s reasonable attorney’s fees because the owner’s demand to make use of the neighbor’s property required the neighbor to hire an attorney to negotiate a license agreement).
 Matter of 2225 46th St., LLC. v. Hahralampopoulos, 55 Misc. 3d 621 (Sup. Ct. N.Y. Cty. 2017) (licensee responsible for paying any costs resulting from the access, including steps necessary to safeguard licensors’ property).