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Published July 24, 2026 Author: Rachelle Rosenberg, Esq. Partner & Director of Real Estate Litigation at Abrams Fensterman, LLP. Recognized as a 2026 HERALD Top Lawyer of Long Island 516-328-2300 |
Construction License Agreements and RPAPL § 881 Representation in New York
A construction license agreement allows a developer or property owner to temporarily enter or use an adjoining property to perform construction, inspections, repairs, monitoring, or legally required protective work. These agreements commonly address scaffolding, sidewalk sheds, roof protection, underpinning, excavation support, vibration monitoring, access schedules, insurance, indemnification, license fees, professional expenses, and restoration obligations.
When the parties cannot reach a voluntary agreement, New York Real Property Actions and Proceedings Law § 881 may permit the owner or lessee seeking access to commence a special proceeding for a court-ordered license. Abrams Fensterman represents both parties seeking construction access and neighboring owners seeking appropriate protections, compensation, and limitations on the proposed access.
Abrams Fensterman represents developers, building owners, contractors, and adjoining property owners in New York construction access matters. Our attorneys negotiate and draft construction license and access agreements, advise clients concerning protections for neighboring properties, and litigate RPAPL § 881 proceedings when voluntary access cannot be obtained.
Experienced New York Construction Access Attorneys
The practice is led by Rachelle Rosenberg, Director of Abrams Fensterman’s Real Estate Litigation Practice. Rachelle has approximately 20 years of experience handling construction license agreements, adjoining-property access disputes, and RPAPL § 881 proceedings. She currently oversees a substantial portfolio of construction access and license agreement matters throughout New York.
Rachelle works closely with Associate Efraim S. Lipschutz, whose practice focuses on representing developers and neighboring property owners in construction access agreements, RPAPL § 881 proceedings, real estate disputes, and related construction litigation.
Construction License Agreements and Access Agreements
Abrams Fensterman represents developers, property owners, contractors, and neighboring property owners in the negotiation and preparation of construction license and access agreements throughout New York.
Construction projects frequently require temporary access to an adjoining property to install legally required protections, inspect existing conditions, perform monitoring, or complete work that cannot be performed safely or in a commercially reasonable manner from the construction property alone. Depending on the project, access may be needed for sidewalk sheds, scaffolding, roof and façade protection, underpinning, excavation support, tiebacks, monitoring equipment, flashing, weatherproofing, construction staging, or temporary projections into an adjoining property’s airspace.
A carefully drafted construction license agreement defines the permitted scope, location, duration, and conditions of access. It also allocates responsibility for property protection, insurance, indemnification, professional expenses, license fees, project delays, restoration, and damages.
Developers and Owners Seeking Access
We help clients identify the access required, provide appropriate documentation, negotiate commercially reasonable terms, and pursue timely access while protecting construction schedules and project economics.
Adjoining Owners and Neighbors
We evaluate proposed access, coordinate with engineers and other construction professionals, negotiate appropriate protections, and address insurance, indemnification, compensation, professional expenses, restoration, and potential property damage.
Resolving access issues through a negotiated agreement can provide greater certainty and flexibility than litigation. When an agreement cannot be reached, our attorneys represent clients in special proceedings under RPAPL § 881.
Construction Transactional Matters
Abrams Fensterman represents owners, developers, contractors, and adjoining property owners in transactional matters involving construction access and the protection of neighboring properties. Our attorneys negotiate, draft, review, and amend license and access agreements addressing:
- Preconstruction surveys and documentation of existing conditions
- Sidewalk sheds, scaffolding, netting, and overhead protection
- Roof, façade, window, mechanical-equipment, and yard protection
- Excavation, underpinning, sheeting, shoring, bracing, and tiebacks
- Vibration, crack, optical, and structural monitoring
- Temporary access to adjoining buildings, roofs, yards, and airspace
- Construction staging and delivery access
- Insurance requirements and additional-insured status
- Indemnification and risk allocation
- License fees and compensation for loss of use and enjoyment
- Legal, engineering, architectural, and other professional expenses
- Access schedules, project milestones, extensions, and delay provisions
- Repair and restoration obligations
- Enforcement, default, termination, and dispute-resolution provisions
Our attorneys coordinate with engineers, architects, contractors, construction managers, insurers, and other project professionals so that an agreement’s legal terms reflect the technical requirements and practical realities of the proposed work.
What Is RPAPL § 881 in New York?
RPAPL § 881 is a New York law that may allow an owner or lessee to obtain a temporary license to enter an adjoining property when improvements or repairs cannot be completed in a commercially reasonable manner without that access and permission has been refused.
Under the current statute, a refusal may include a neighboring owner’s failure to respond within 60 days after being served with more than one written notice by certified mail. When the statutory requirements are satisfied, the party seeking access may commence a special proceeding in the New York State Supreme Court in the county where the property is located.
Access authorized under RPAPL § 881 may include preconstruction surveys; monitoring equipment; scaffolding and sidewalk sheds; roof, façade, and yard protection; underpinning; excavation support; tiebacks; temporary airspace intrusions; construction staging; certain work involving chimneys or rooftop equipment; and other measures required by law or good construction practice.
Common triggers include sidewalk sheds extending onto a neighbor’s frontage, overhead protection over an adjacent roof, underpinning or excavation support near a shared lot line, scaffold tiebacks anchored into a party wall, façade access, monitoring equipment, temporary construction staging, and crane swing or other temporary airspace clearances.
A court-ordered license must address statutory conditions governing notice, duration, relevant construction documents, liability insurance, and reasonable compensation for the adjoining owner’s loss of use and enjoyment. The court may also impose additional terms, consider the parties’ compliance with prior license agreements, and require reimbursement of reasonable fees incurred by the adjoining owner in reviewing relevant construction documents.
When Is a Neighbor License Agreement Required for Construction?
A neighbor license agreement may be needed when construction cannot be completed safely, lawfully, or in a commercially reasonable manner without entering, installing protections on, or temporarily using an adjoining property.
Common triggers include sidewalk sheds extending onto a neighbor’s frontage, overhead protection over an adjacent roof, underpinning or excavation support near a shared lot line, scaffold tiebacks anchored into a party wall, façade access, monitoring equipment, temporary construction staging, and crane swing or other temporary airspace clearances.
If the adjoining owner voluntarily authorizes access, the parties can negotiate and sign a construction license agreement without court involvement. If permission is refused and the statutory requirements are satisfied, the party seeking access may commence an RPAPL § 881 special proceeding.
What Factors Do Courts Consider in an RPAPL § 881 Proceeding?
Courts evaluate the circumstances of each matter and balance the need for access against the burden placed on the adjoining property owner. Relevant considerations may include:
- The nature, extent, and duration of the requested access.
- Whether the work can be completed in a commercially reasonable manner without entering the adjoining property.
- The protections proposed for the adjoining property, its occupants, and improvements.
- The effect of the access on use, enjoyment, operations, light, air, and property value.
- The parties’ good-faith negotiations, notices, documentation, and prior compliance with any access agreement.
- The proposed license fees and compensation for loss of use and enjoyment.
- Insurance, indemnification, monitoring, and restoration protections.
- The reasonable professional expenses incurred in evaluating the proposed work.
Courts retain discretion to tailor the scope, duration, compensation, and conditions of a license to the property and proposed construction, including conditions that may not have appeared in the original request.
What Terms Are Included in a Neighbor License Agreement?
The appropriate provisions depend on the property, project, proposed work, and expected degree of interference. A negotiated or court-ordered construction access arrangement may address:
The specific areas, structures, air rights, equipment, and activities involved.
Start dates, estimated completion, working hours, notice, milestones, and extensions.
Surveys, monitoring, scaffolding, netting, overhead protection, and excavation support.
Liability coverage, policy documentation, additional-insured status, and appropriate limits.
Allocation of responsibility for property damage, personal injury, and third-party claims.
License fees or other compensation for loss of use, enjoyment, or property value.
Reasonable legal, engineering, architectural, and other review costs.
Responsibility for damage, removal of installations, and restoration following completion.
The availability of an RPAPL § 881 proceeding often influences negotiations, making it important for both sides to propose reasonable access terms, property protections, compensation, and project conditions supported by the circumstances of the proposed work.
How Long Does an RPAPL § 881 Proceeding Take?
The timing of an RPAPL § 881 proceeding varies by county, court schedule, project complexity, the completeness of the supporting documentation, and the extent of the adjoining owner’s objections.
Engineering disputes, questions concerning the necessity or scope of access, compensation, and proposed protective measures can affect the timeline. Because unresolved access issues may delay construction schedules, financing draws, project milestones, and increase carrying costs, owners and developers should evaluate potential access requirements as early as possible. Abrams Fensterman works to advance these matters efficiently while developing the documentation and proposed protections necessary to support the requested access.
What Rights Does an Adjoining Property Owner Have Under RPAPL § 881?
An adjoining property owner asked to grant access retains important rights even after an RPAPL § 881 proceeding is filed. The owner may challenge whether the requested access is necessary, commercially reasonable, properly documented, appropriately limited, and supported by adequate protections.
The adjoining owner may seek reasonable notice, limits on the scope and duration of access, relevant construction documents, liability insurance information, monitoring, indemnification, compensation for loss of use and enjoyment, reimbursement of qualifying professional-review expenses, and repair or restoration of the property.
RPAPL § 881 does not give a developer unrestricted access to neighboring property. A negotiated agreement or court order should define the permitted access and establish conditions appropriate to the project and the burden placed on the adjoining owner.
How Abrams Fensterman Represents Both Sides of Construction Access Matters
Abrams Fensterman regularly represents both petitioners—including developers and owners seeking access—and respondents, including adjoining property owners asked to permit entry onto or use of their properties. This dual perspective helps our attorneys anticipate the concerns likely to arise during negotiations and understand the terms, protections, and supporting documentation courts may consider.
The practice is led by Rachelle Rosenberg, Director of the firm’s Real Estate Litigation Practice. Rachelle has approximately 20 years of experience handling construction license agreements and RPAPL § 881 matters and currently oversees a substantial portfolio of over 100 construction access agreements.
Rachelle works closely with Associate Efraim S. Lipschutz, who represents developers and neighboring property owners in construction access agreements, RPAPL § 881 proceedings, real estate disputes, and related litigation.
The firm’s construction access team also includes Mark J. Caruso, Elliot Steinmetz, and Leonard Gekhman.
Our attorneys coordinate with engineers, architects, contractors, and construction professionals so that negotiated agreements and court submissions reflect the technical requirements and practical impact of the proposed work. The team also draws upon the capabilities of Abrams Fensterman’s broader New York Real Estate Law and Litigation Practice, including related litigation, financing, and transactional matters.
Contact Our RPAPL § 881 and Construction License Agreement Team
To discuss a construction license agreement, neighbor access dispute, or RPAPL § 881 proceeding, contact Abrams Fensterman at one of our New York offices:
Long Island: 516-328-2300
Brooklyn: 718-215-5300
White Plains: 914-607-7010
Rochester: 585-218-9999
Albany: 518-535-9477
Frequently Asked Questions About Construction Access in New York
What is a construction license agreement in New York City?
A construction license agreement is a negotiated contract that gives a developer, building owner, contractor, or project team temporary permission to enter, use, or install protective equipment on an adjoining property. The agreement typically defines the scope and duration of access and addresses insurance, indemnification, property protections, monitoring, professional expenses, license fees, restoration, and responsibility for damages.
What happens when a neighbor refuses construction access in New York?
The party seeking access should first determine whether the work can be completed in a commercially reasonable manner without entering the adjoining property and attempt to negotiate a voluntary agreement. Under the current version of RPAPL § 881, refusal may include a failure to respond within 60 days after more than one written notice has been served by certified mail. If the statutory requirements are met, the owner or lessee seeking access may commence an RPAPL § 881 special proceeding requesting a court-ordered license.
Can I sue my neighbor for construction access in New York?
A neighboring owner’s refusal to grant voluntary access does not, by itself, create a claim for damages. However, when the statutory requirements are satisfied, an owner or lessee seeking access may commence a special proceeding under RPAPL § 881 and ask the court to grant a temporary license upon appropriate conditions. The proceeding is generally filed in the New York State Supreme Court in the county where the property is located.
What should be included in a construction access agreement?
A construction access agreement should clearly define the areas involved, permitted activities, project schedule, duration of access, required notice, working hours, protective installations, monitoring, insurance, indemnification, compensation, professional-fee reimbursement, repair obligations, and procedures for extensions or disputes. The appropriate terms depend on the property, project, proposed work, and degree of interference with the adjoining owner’s use of the premises.
Who pays the legal and engineering fees for a construction access agreement?
The parties may negotiate responsibility for legal, engineering, architectural, and other professional-review expenses. In an RPAPL § 881 proceeding, the court is authorized to require the party seeking access to reimburse the adjoining owner for reasonable fees incurred in reviewing relevant construction documents. Whether particular fees are recoverable and the amount considered reasonable depend on the work performed, the project’s complexity, and the circumstances of the matter.
How is a license fee calculated in an RPAPL § 881 matter?
Compensation generally reflects the burden that the requested access places on the adjoining property. Relevant considerations may include the scope and duration of access, loss of use of affected rooftops, terraces, yards, frontage, or other areas, interference with occupants or business operations, diminution in property value, and the overall intrusiveness of the work. Compensation may be structured as recurring payments while access or protective installations remain in place, but the appropriate amount depends on the facts of each matter.
Can a court require payment of a license fee under RPAPL § 881?
Yes. The current statute requires reasonable compensation for an adjoining owner’s loss of use and enjoyment of the property, including diminution in value. The amount depends on factors such as the nature, scope, duration, and intrusiveness of the access and its effect on the adjoining property. Compensation may be established through negotiation or determined by the court.
Does every construction project require an RPAPL § 881 proceeding?
No. An RPAPL § 881 proceeding is generally unnecessary when the parties voluntarily negotiate and sign a construction license agreement. Court involvement may become necessary when access is required, permission has been refused, and the parties cannot agree on reasonable terms.
Can an adjoining property owner prevent all construction access?
An adjoining owner may challenge whether access is necessary, commercially reasonable, properly documented, or appropriately limited. However, if the statutory requirements are satisfied, a court may grant access upon conditions designed to protect and compensate the adjoining owner. The owner may seek limitations on the scope and duration of access, insurance documentation, property protections, professional-fee reimbursement, compensation, and restoration requirements.
Do I need an RPAPL § 881 order to install a sidewalk shed?
An RPAPL § 881 order is not necessary if the adjoining owner voluntarily permits the installation through a negotiated license agreement. If a sidewalk shed, overhead protection, or related equipment must extend onto or over adjoining property and permission is refused, the party seeking access may pursue an RPAPL § 881 proceeding if the statutory requirements are satisfied.
Does a developer need permission to install scaffolding or protection on a neighboring property?
Generally, a developer should not enter or install equipment on an adjoining property without the owner’s consent or legal authorization. If scaffolding, a sidewalk shed, roof protection, monitoring equipment, or another installation extends onto or over neighboring property, the parties may negotiate a license agreement. If permission is refused and the statutory requirements are met, the developer or owner may seek a court-ordered license under RPAPL § 881.
What insurance is required for a neighbor license agreement?
Insurance requirements should be tailored to the proposed work and the risks presented by the access. A construction license agreement commonly addresses commercial general liability insurance, documentation permitting the adjoining owner to make a third-party claim, and, where appropriate, additional-insured status, umbrella coverage, workers’ compensation, and builders risk coverage. The appropriate policies and limits depend on the project, the parties’ agreement, and any conditions imposed by the court.
Does an RPAPL § 881 license protect the adjoining owner against property damage?
The statute makes the party receiving access liable for actual damages resulting from the entry. A negotiated agreement or court order may also require liability insurance documentation, indemnification, monitoring, preconstruction surveys, property protections, and repair or restoration obligations. These terms should be tailored to the property and the work being performed.
