Licence or access agreements typically have two components: a porch survey that records what the building, basement, roof and other areas look like before work begins on an adjacent property; and general agreement. Berger preferred to negotiate the pact in two parts. Once the agreement is finalized in advance, she settles the details: “I like to spend more time on the essence of the general agreement.” The basic rules are quite simple. A landowner who needs access – either to comply with a legal obligation to protect adjacent land during construction or to facilitate or taste construction – must obtain a licence from the owner of the adjacent property. A license is simply a non-exclusive use authorization for a defined purpose and period of time. The license may be obtained either through negotiation and agreement with the owner of the adjacent property or, if no agreement can be reached, through legal proceedings under Section 881 of the New York Real Estate Actions and Procedures Act. Article 881 provides that a “licence shall be granted by the court in a case appropriate to the conditions required by the courts. A “reasonable case” is one in which interpretation is “necessary” within certain limits of relevance and practicability. The real problem is to define the conditions under which access is granted. Owners who completely resist access largely fail. However, there is another option, the developer does not have to meet the requirements of the neighbor. If the Developer is unwilling to pay the Neighbor because it is requesting an unreasonable royalty or appears to intentionally block the progress of construction, the Developer may initiate special legal proceedings to obtain a license to enter the adjacent property under Section 881 of the Real Property Actions and Proceedings Law (“RPAPL”) (see this article in the New York Law Journal for more information).
However, this usually involves hiring lawyers to represent the developer and waiting for the court`s decision. Many developers choose to negotiate and pay license fees to avoid the costs and uncertainties of litigation. In this particular case, the developer and the neighbouring owner of the building had negotiated privately and agreed that the developer could install protective devices on the neighbouring property, including a construction fence, sidewalk shelter, roof guard, escape net and other overhead fuses. However, they did not agree on the license fee, so the developer filed a § 881 complaint. The neighbour asked the court for $9,000 per month for 24 months to compensate for the reduction in the rental value of the apartments at the market price of the building. The court found that this alleged loss of rental income was highly speculative and that the inconvenience to tenants caused by the required access was minimal, and therefore refused to impose a royalty on the developer. Protective measures come in two forms: physical protection against debris and accidental damage resulting from work (e.g. B workers walking in flower beds of precious flowers) and protective measures that limit the way the work is done to protect the intangible interests of the neighbouring owner, such as hourly and weekly restrictions .B. Physical protection measures may include, among others, the installation of protective barriers, the construction of protective scaffolding and preventive measures against dust and dirt, depending on the type of project carried out. Physical protection work must be agreed upon between design professionals for the developing owner and the neighboring owner, and the developing owner must agree to pay a reasonable fee to the neighboring owner so that the neighboring owner can hire an engineer. This is a common practice, especially when there is a resource imbalance between the developing owner and the neighbor.
The design of the sidewalk shed, for example, is a much debated topic because it is not “on” the neighbor`s property. It is rather located on the public sidewalk in front of the neighbor`s property, but can affect commercial tenants on the ground floor, as well as the windows on the second floor. In addition, neighbours assess, comment and prohibit excavation activities on the proponent`s site, although no access is requested and well before a shovel has even entered the ground. [1] Access to the adjacent property is generally not required for the construction of a sidewalk shed – which is required for twenty feet on both sides of a construction project – because the walkway in front of the property adjacent to the property line is the property of the city (unless the adjacent property is set back from the property line, in which case access to the adjacent property and therefore to the permit, etc. is required). Local developers are often forced to confront a neighbour who refuses to grant access to carry out construction activities. Often, the refusal of access by the neighbor is justified. In most cases, it is best to contact the neighboring owner in time before construction begins. It is much more cost-effective in terms of hard costs, time and attorneys` fees to negotiate an access agreement before a construction dispute is disputed. “Be at war with your vices, at peace with your neighbors, and let every new year find a better man.” – Benjamin Franklin Plan A is to obtain consent directly from the neighbor through a building permit agreement in which both parties negotiate the scope and conditions of access that will be allowed. But sometimes private negotiations fail, or a neighbor will refuse to negotiate at all.
When this happens, developers often switch to Plan B — looking for a court-ordered access license available under Section 881 of the New York Real Estate Actions and Procedures Act. Intangible protections are often particularly important for neighboring homeowners, who may be much more willing to make a deal if there is assurances that work will stop at five o`clock every night or that there will be no work on certain holidays. This provision will vary considerably depending on the parties and the scope and duration of the project, and well-negotiated safeguards will take into account the unique requirements of the project and the parties to the agreement. About three years ago, the board of directors of a 35-unit co-op on the Upper West Side received a routine request from a neighbor. The neighboring building had to do some repair work, and the crews needed access to the co-op property – specifically, they had to extend their scaffolding about 10 feet in front of the co-op`s façade. .