Amended RPAPL Section 881: Streamlining Access Proceedings for Property Repairs and Improvements

In December of 2025, an amended RPAPL Section 881 went into effect with significant changes that clarify and streamline the process to procure access to adjoining properties to effectuate building repairs or improvements when a neighbor refuses to voluntarily provide a license. Moreover, by rendering access proceedings more predictable and making judicial access orders more consistent, these changes will additionally serve to promote early resolution of access disputes without the need for litigation.

In 1968 the New York State legislature attempted to address this problem through enactment of RPAPL Section 881, which gave landowners standing to seek a court order providing right of entry "in an appropriate case upon such terms as justice requires." Unfortunately, as a practical matter, the nebulous statutory language resulted in inconsistent legal precedents rendering applications for judicial access orders unpredictable. With landowners unable to predict with certainty whether a court would grant the remedy, and, if granted, what costs and terms of access the court might impose, the original statute provided naysaying neighbors with significant leverage to extract concessions in exchange for providing access.

Amended RPAPL 881, which became effective December 5, 2025, seeks to address these issues by more clearly defining the requirements to obtain a judicial access order and enunciating specific considerations for judges to address when exercising their discretion to grant such relief. As drafted, the amended statute should provide aggrieved landowners clearer guideposts to ensure success in obtaining judicial intervention and result in greater uniformity in the terms of court-ordered access.

The amended RPAPL Section 881 makes the following changes:

1. Provides a deadline to respond to requests for access.
   Mandatory access orders may now issue against a non-consenting neighbor upon the neighbor's failure to respond to two written requests for access within a 60-day period. Previously there were no guidelines for when a request for access was ripe for judicial determination, and many would-be-litigants suffered during long periods of non-responsiveness or negotiations for fear of making a premature judicial application.
    
2. Lowers the legal threshold to obtain a mandatory access order.
   Access is now subject to a lower legal threshold. Previously the applicant was required to demonstrate that access to the adjoining premises was "necessary" to compete the required repair or improvement. Now the applicant need only show that the desired repair or improvement cannot be performed "in a commercially reasonable manner" without access.
    
3. Delineates the wide-ranging purposes for which access may be sought.
   Access orders are now explicitly permitted for purposes including but not limited to (i) preconstruction surveys; (ii) installation, maintenance, inspection, repair, replacement and/or removal of monitoring devices and protective coverings or structures; and (iii) construction staging necessary to complete any work on the adjoining property. Permitting courts to allow underpinning on adjoining premises as a part of any access order, a significant reversal of current case law, is a boon for project owners
    
4. Sets forth guidelines to be followed by Judge's in the framing of their access orders.
   Significantly, the statute now explicitly indicates that access orders may provide for compensation to the adjoining owner for the loss of use of all or a portion of its premises or a diminution in value of the premises, reimbursement of professional fees incurred in connection with the access request, and imposition of insurance requirements, and permits consideration of the parties' prior conduct in connection with access requests, including whether the parties complied with prior or existing licenses respecting the same property (i.e., whether the parties have operated in good faith in their prior dealings concerning the access issues between them).
    
5. Mandates the provision of relevant documents. 
   The statute now requires that licensees provide all "relevant documents" relating to (i) devices, structures, materials or equipment on the adjoining property; and to (ii) the licensee and its contractors' general liability insurance policies, which are required to cover the adjoining owner as additional insureds in connection with the work.

Whether in the context of negotiations with neighbors over the arrangement of access or for the purpose of demonstrating that work cannot be performed in a "commercially reasonable" manner without access, the land owner seeking access should be prepared to provide the following documentation: (i) clear scopes of work for the proposed repair or improvement; (ii) drawings and overhead protection plans for the adjoining premises; (iii) project time lines; and (iv) insurance information.

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For more information on condominium and cooperative law matters, please contact:

Bruce A. Cholst at +1 212 592 1621 or [email protected]
Brendan Schmitt at +1 212 592 1689 or [email protected]

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