On December 5, 2025, Governor Kathy Hochul signed Senate Bill S.3799-C, enacted as Chapter 601 of the Laws of 2025. The legislation significantly expanded and clarified § 881 of New York’s Real Property Actions and Proceedings Law (“RPAPL § 881”), which allows an owner or lessee to seek a court-ordered license to enter adjoining property when access is necessary to perform improvements or repairs.
A subsequent chapter amendment, Senate Bill S.8761, was signed on February 13, 2026. That amendment broadened the statute’s definition of an exempt state entity and clarified the commercial general liability insurance requirements applicable to court-ordered access.
Together, these changes establish a more detailed statutory framework for construction license agreements and RPAPL § 881 proceedings. The law now addresses what constitutes a refusal of access, when court intervention may be available, the types of work that can support an access request, the conditions imposed on a license, compensation for adjoining owners, and the information and insurance documentation that must be provided.
A More Defined Path to Construction Access
RPAPL § 881 continues to provide a potential remedy when an owner or lessee needs to enter an adjoining property to complete improvements or repairs but cannot obtain voluntary permission.
The amended statute now specifies that the work must be incapable of being completed in a commercially reasonable manner without entering the adjoining property. This places greater emphasis on whether the proposed access is genuinely needed or whether a reasonable construction alternative is available.
- Why access to the adjoining property is needed
- What work or protective installations are proposed
- Whether alternative construction methods were evaluated
- Why those alternatives are not commercially reasonable
- When access will be required and how long it is expected to continue
Engineering reports, architectural plans, construction schedules, site logistics, protection plans, and evidence of negotiations may all become important in establishing necessity and reasonableness.
What Constitutes a Refusal of Access?
Before the amendments, RPAPL § 881 required a refusal of permission but did not define what qualified as a refusal. The current statute provides that refusal may include circumstances in which more than one written notice has been served on the owner by certified mail and no response has been received within 60 days.
This creates a more identifiable pathway to court, but also makes the pre-litigation record particularly important. A party seeking access should preserve each written request, certified-mail records, plans and insurance materials provided, proposed license terms, responses, counterproposals, and negotiation history.
For adjoining owners, ignoring an access request may no longer prevent the project from moving forward. Failing to respond can help establish the statutory refusal necessary to commence an RPAPL § 881 proceeding.
Lessees May Need to Be Identified and Joined
At the requesting party’s request, an adjoining owner named in an RPAPL § 881 proceeding must provide sufficient information to identify its lessees so they may be joined in the proceeding.
This may be particularly important for commercial buildings, mixed-use properties, cooperative and condominium developments, and other properties with multiple occupants. Proposed access can affect entrances, business operations, rooftops, terraces, yards, windows, mechanical systems, light, air, and quiet enjoyment.
What Types of Construction Access Can Be Authorized?
The amended law identifies a broad, though not necessarily exhaustive, range of permissible purposes:
- Preconstruction surveys documenting existing conditions
- Vibration, crack, and optical monitoring devices
- Sheds, bridges, netting, and protection for roofs, façades, windows, equipment, yards, walkways, and driveways
- Scaffolding installed on or over adjoining property
- Sheeting, shoring, bracing, and other excavation or demolition support
- Wall ties, tiebacks, anchors, straps, and underpinning when required by law
- Flashing, sealing, and weatherproofing
- Temporary airspace intrusions or projections
- Certain temporary or permanent changes to chimneys, vents, flues, exhausts, or rooftop equipment
- Construction staging and other measures required by law or good construction practice
The inclusion of certain permanent supports and rooftop-equipment changes is particularly significant because their long-term effect may differ substantially from a temporary scaffold, shed, or monitoring installation.
New Conditions for Court-Ordered Access
Reasonable Prior Notice
Entry must generally occur upon reasonable prior notice to the adjoining owner, subject to court-established terms. The statute recognizes an exception for emergencies posing an immediate threat to persons or property.
A Good-Faith Projected Schedule
The duration of the license must be based on a good-faith projection of anticipated dates and the estimated duration of access. The licensee must make commercially reasonable efforts to follow that schedule and request a court extension if additional time is required.
Production of Relevant Construction Documents
Before beginning covered work, the licensee must provide relevant documentation, which may include architectural and structural drawings, site-safety and protection plans, surveys, engineering reports, monitoring protocols, scaffolding or excavation-support plans, schedules, and evidence of insurance.
Commercial General Liability Insurance
The February 2026 amendment requires documentation confirming that the licensee and any contractor, consultant, or agent entering the adjoining property maintains commercial general liability insurance sufficient to allow the adjoining owner or identified lessees to make a third-party claim if entry causes property damage or personal injury.
Parties may still negotiate additional-insured status, policy limits, umbrella coverage, workers’ compensation, builders risk coverage, indemnification, and other risk-allocation provisions in a voluntary construction license agreement.
Compensation for Loss of Use and Enjoyment
The statute now expressly requires the licensee to reasonably compensate the adjoining owner for loss of use and enjoyment of the adjoining premises, including diminution in value.
Compensation may be relevant when access affects rooftops, terraces, yards, driveways, parking areas, entrances, commercial frontage, windows, light, air, tenant operations, mechanical equipment, or the use and value of the property during construction.
A negotiated agreement may provide for an initial payment, recurring monthly payments, different fees for separate construction phases, increased payments after agreed milestones, or another structure tailored to the project.
Professional Fees and Document Review
The amended statute expressly authorizes courts to require a licensee to reimburse an adjoining owner for reasonable fees incurred in reviewing relevant construction documents. Depending on the project, this may require structural engineers, architects, construction consultants, monitoring professionals, or other technical experts.
Although the statute expressly addresses document-review fees, treatment of attorneys’ fees may depend on the agreement, circumstances, and applicable case law. A voluntary agreement should clearly address legal, engineering, architectural, and other professional expenses.
Prior Conduct May Affect the Court’s Decision
A court may consider evidence that either party failed to comply with an existing or prior license concerning the same property. This can be significant when there is a history of expired agreements, incomplete restoration, unpaid fees, property damage, unauthorized access, or failure to remove protective installations.
- Executed licenses and amendments
- Notices, correspondence, and payment records
- Inspection and monitoring reports
- Photographs and surveys
- Damage claims and restoration records
- Documents showing compliance with project deadlines
State-Owned and State-Occupied Property
The current statute defines a state entity broadly to include New York State departments, divisions, agencies, offices, public authorities, public benefit corporations, and their affiliates or subsidiary agencies.
When the adjoining property is owned, leased, or otherwise occupied by a covered state entity, a court shall not grant an RPAPL § 881 license. This exemption should be investigated at the outset of any project involving property connected to a state agency or public authority.
Practical Considerations for Parties Seeking Access
- Identify every adjoining property and potentially affected occupant
- Determine the exact access and protective installations required
- Evaluate commercially reasonable alternatives
- Coordinate with architects, engineers, and contractors
- Prepare complete plans and supporting documentation
- Serve and preserve proper written notices
- Propose a realistic access schedule
- Evaluate insurance, indemnification, compensation, and professional expenses
- Allow sufficient time for negotiations or an RPAPL § 881 proceeding
Waiting until access becomes critical may jeopardize construction schedules, financing draws, permit-related work, and project milestones while increasing carrying costs.
Practical Considerations for Adjoining Owners
Adjoining owners should not ignore an access request or assume that refusing to sign the requesting party’s proposed agreement ends the matter. Instead, an adjoining owner should promptly:
- Identify the proposed scope and duration of access
- Request complete plans, surveys, engineering materials, and insurance documents
- Determine which tenants or occupants may be affected
- Retain appropriate legal and technical professionals
- Document the property’s existing condition
- Evaluate monitoring and protective measures
- Assess the effect on use, operations, and property value
- Negotiate reasonable compensation and professional-fee reimbursement
- Require appropriate repair and restoration obligations
- Propose practical limitations on access, scheduling, and extensions
Early Planning Is the Best Protection
The amended RPAPL § 881 provides substantially more detail than the former statute, but it does not eliminate the need for careful negotiation or fact-specific analysis. Parties seeking access must establish commercial necessity and address notice, scheduling, documentation, insurance, compensation, and the practical effect of the work. Adjoining owners retain meaningful rights to examine the request, require appropriate protections, seek reasonable compensation, and challenge access that is unnecessary, excessive, or insufficiently supported.
For both sides, the best opportunity to avoid delay and control risk is to address construction access early, involve the necessary legal and technical professionals, and develop proposed terms that reflect the actual conditions of the project and adjoining property.
New York RPAPL § 881 attorneys
To discuss a construction license agreement, adjoining-property access dispute, or RPAPL § 881 proceeding, contact Abrams Fensterman’s Construction Access and Real Estate Litigation Team.
