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Real Property Law Provision Allowing Court-Ordered Access to Neighboring Property Applies to Condo Units

            In order to build a structure on a parcel of property, or made repairs to an existing structure, the property owner will often need access to a neighboring property. If the neighbor refuses to allow access, it may be difficult or impossible for the construction or repair work to be performed. To address this situation, Section 881 of the New York Real Property Actions and Proceedings Law (RPAPL) allows a property owner to bring a legal proceeding seeking court-ordered access to the neighboring property. The court is authorized to grant the needed access upon terms it finds to be equitable, which may include the payment of a reasonable license fee to the neighboring owner.

Suppose the two parcels involved are not neighboring lots or buildings, but adjoining condominium units in the same building? The answer is that RPAPL 881 still applies, according to the court’s decision in Voron v. Board of Managers of Newswalk Condominium, 63 Misc. 3d 1001 (Sup. Ct. Kings Co. Apr. 26, 2019). The petitioners in this case, who own Unit 515 at their condominium building, sought access to Unit 415, immediately below their unit, so that they could perform plumbing work in Unit 515. Petitioners asserted that to perform the work, their contractor needed to reach the subfloor under their unit, which is a general common element of the Condominium but can only be accessed from the apartment below. Despite this claim of necessity, the owners of Unit 415 refused to provide access. Petitioners asked the Board of Managers to secure them access to Unit 415, but the managing agent advised that the Board would not get involved in a dispute between shareholders. Petitioners then sued the Board and the owners of Unit 415. The Unit 415 owners moved to dismiss the case, arguing that they had no obligation to allow access.

The court found that it was presented with an issue that no previous decision addressed: whether RPAPL 881 applies to adjoining condominium units. The court reviewed the language of the statute, which applies “[w]hen 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 lessee, and permission so to enter has been refused ….” It held that “[b]ased on the plain language of the statute, RPAPL 881 applies to any ‘real property,’ which includes condominium units.”

Turning to the specific access request before it, the court quoted prior precedent that “[a] proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court … which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted.” Here, the owners of Unit 515 established that access to Unit 415 was necessary for them to perform their repairs, and they were requesting access for only the limited period of time needed to accomplish those repairs.

Accordingly, the court allowed the Unit 515 owners to access Unit 415 for a maximum of 10 consecutive days, provided that they paid the Unit 415 owners a license fee of $100 per day. In addition, the Unit 515 owners were required to maintain a comprehensive liability policy covering the work to be performed in an amount not less than $1 million, with the Unit 415 owners named as additional insureds, and to indemnify the Unit 515 owners for any personal injury or property damage caused by the work.