Construction License Agreement and RPAPL § 881 Attorneys in New York
A construction license agreement allows a developer or property owner to temporarily enter, use, or install protective equipment on adjoining property for 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.
When voluntary access cannot be obtained, New York Real Property Actions and Proceedings Law § 881 may permit an owner or lessee to seek a court-ordered temporary license. Abrams Fensterman represents both developers and owners seeking access and adjoining property owners seeking appropriate protections, compensation, and limitations.
What Is an RPAPL § 881 Proceeding in New York?
RPAPL § 881 is a New York law that may allow an owner or lessee to obtain a temporary license to enter adjoining property when improvements or repairs cannot be completed in a commercially reasonable manner without access and permission has been refused. Under the current statute, refusal may include an owner’s failure to respond within 60 days after more than one written notice has been served by certified mail. A qualifying special proceeding is generally commenced in New York State Supreme Court in the county where the property is located.
Potentially authorized work includes preconstruction surveys, monitoring equipment, scaffolding, sidewalk sheds, roof and façade protection, underpinning, excavation support, tiebacks, temporary airspace intrusions, construction staging, certain chimney or rooftop-equipment work, and other legally required or accepted protective measures. A court-ordered license must address statutory conditions concerning notice, duration, relevant construction documents, liability insurance, and reasonable compensation for loss of use and enjoyment. The court may impose additional terms, consider prior compliance, and require reimbursement of reasonable fees incurred in reviewing relevant construction documents.
Who Leads Abrams Fensterman’s Construction License and RPAPL § 881 Practice?
Rachelle Rosenberg is a Partner and Director of Abrams Fensterman’s Real Estate Litigation Department. For more than 20 years, she has represented developers, property owners, contractors, businesses, and individuals in construction license agreements, adjoining-property access disputes, RPAPL § 881 proceedings, and complex real estate litigation.
Rachelle handles a substantial portfolio of more than 100 construction license agreement matters throughout New York City. She regularly drafts and negotiates agreements involving scaffolding, sidewalk sheds, façade work, underpinning, excavation, property protections, insurance, indemnification, access fees, project scheduling, and restoration. When negotiations do not resolve the dispute, she represents both petitioners seeking access and adjoining owners protecting their property rights.
How Do Construction License and Neighbor Access Agreements Work?
Construction projects may require temporary access to 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.
A carefully drafted 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 identify required access, assemble plans and insurance materials, evaluate alternatives, negotiate commercially reasonable terms, and pursue timely access while protecting schedules, financing, and project economics.
Adjoining Owners and Neighbors
We evaluate proposed access, coordinate technical review, document existing conditions, and negotiate appropriate protections, insurance, indemnification, compensation, professional expenses, restoration, and limitations.
What Construction Access Terms Do Our Attorneys Negotiate?
Our attorneys negotiate, draft, review, and amend construction license and access agreements addressing:
- Preconstruction surveys and existing-condition documentation
- Sidewalk sheds, scaffolding, netting, and overhead protection
- Roof, façade, window, equipment, yard, and driveway protection
- Excavation, underpinning, sheeting, shoring, bracing, and tiebacks
- Vibration, crack, optical, and structural monitoring
- Temporary access to buildings, roofs, yards, and airspace
- Construction staging and delivery access
- Insurance, additional-insured status, and indemnification
- License fees and loss-of-use compensation
- Legal, engineering, architectural, and review expenses
- Schedules, milestones, extensions, and delay provisions
- Repair, restoration, default, termination, and dispute resolution
We coordinate with engineers, architects, contractors, construction managers, insurers, and other professionals so the legal terms reflect the technical requirements and practical impact of the work.
When Is a Construction Neighbor License Agreement Needed?
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 adjoining property. Common triggers include:
What Factors Do Courts Consider In An RPAPL § 881 Petition?
New York courts apply a balancing test focused on the equities between the petitioner and the adjacent property owner. The considerations weigh balance the need for access against the burden placed on the adjoining owner. The factors most consistently considered are:
- Nature, extent, and duration of the proposed work and the access required.
- Necessity of the access, including whether work can be reasonably completed without entering the neighbor’s property.
- Protections to the adjacent property, including overhead protection, monitoring, and pre-construction surveys.
- Inconvenience and disruption to the adjacent owner’s use, light, air, or quiet enjoyment.
- Good faith negotiation by the petitioner before filing, including reasonable offer of terms and license fees.
- License fees and compensation for the use and burden imposed on the neighbor’s property.
- Insurance and indemnification offered, including additional-insured status and adequate policy limits.
- Reimbursement of professional fees the neighbor reasonably incurred in reviewing and negotiating the license.
What Terms Are in a Construction Access Agreement?
Areas, structures, air rights, equipment, and permitted activities.
Start dates, completion, hours, notice, milestones, and extensions.
Surveys, monitoring, scaffolding, netting, and excavation support.
Coverage, documentation, insured status, limits, and risk allocation.
License fees, loss-of-use compensation, and professional-review costs.
Damage responsibility, removal, restoration, default, and enforcement.
How Abrams Fensterman Represents Both Sides of Access Matters
The firm regularly represents both petitioners – including developers and owners seeking access – and respondents, including adjoining owners asked to permit entry or installations. This dual perspective gives the team a working knowledge of what courts accept, what license fee ranges hold up under scrutiny, and what protective terms survive judicial review.
New York’s RPAPL § 881 Overhaul
Rachelle Rosenberg and Efraim S. Lipschutz explain the statute’s expanded construction-access framework, including refusal, documentation, scheduling, insurance, compensation, professional fees, and state-entity limitations.
Contact Our RPAPL § 881 and Construction License Team
To discuss a construction access agreement, neighbor-access dispute, or RPAPL § 881 proceeding, contact Abrams Fensterman:
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 New York Construction Access
What happens when a neighbor refuses construction access?
The party seeking access should evaluate commercially reasonable alternatives and attempt to negotiate. Under the current statute, refusal may include failure to respond within 60 days after more than one written notice by certified mail. If the requirements are satisfied, an owner or lessee may commence an RPAPL § 881 special proceeding.
How long does an RPAPL § 881 proceeding take?
Timing varies by county, court schedule, project complexity, documentation, technical disputes, and the adjoining owner’s objections. Parties should address access early because unresolved issues can delay construction schedules, financing draws, milestones, and increase carrying costs.
Who pays legal and engineering fees?
The parties may negotiate responsibility for legal, engineering, architectural, and other professional expenses. In a proceeding, the court may require reimbursement of reasonable fees incurred by the adjoining owner to review relevant construction documents. Recoverability and amount depend on the work and circumstances.
Do I need permission for scaffolding or a sidewalk shed on neighboring property?
Generally, a developer should not enter or install equipment on adjoining property without consent or legal authorization. The parties may negotiate an agreement. If permission is refused and statutory requirements are satisfied, the developer or owner may seek a court-ordered license.
