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Senate Bill S1305: Will Adjoining Property Access be More Accessible?

Co-ops and Condos

Construction, by nature, is a messy business. Considering that there are over 60,000 tightly packed buildings in Manhattan alone, construction work in New York can be difficult to undergo without having to invade someone else’s space. That is where real property actions and proceedings law § 881 comes in; it enables courts to provide property owners temporary access to adjoining property when trying to improve, renovate, or perform statutorily required work. Unfortunately, § 881 is noticeably vague, providing little to no guidance for the courts or the parties involved. Cooperatives and condominiums often end up in court to gain access to adjoining buildings when performing required Local Law 11 work.  Senate bill S1305 aims to rectify this problem.

What Is Wrong with § 881?

The language of § 881, enacted in 1968, established that during a special proceeding a court could grant permission for a party to access an adjoining property to renovate or repair their own; it further stated that the adjoining property owner was to be compensated for any actual damage occurring as a result of the entry. The statute provided no further guidance to court or parties on how the special proceeding should run or what factors should be considered or what constituted a viable claim. To rectify this, in February of this year the New York Senate passed Bill S8430 to amend § 881.

What Does S1305 Do?

Senate Bill S1305, which has passed in the Senate and delivered to the Assembly, aims to maintain the core purpose of § 881, while establishing a framework for property owners and courts and clarifying the rights of adjoining property owners in the following ways:

  1. It provides definitions for its most important terms while also simplifying its language, by replacing phrases like “owner or lessee” with licensee.

  2. It no longer frames a licensee’s desire to access adjoining property as a need and instead requires them to provide support for their position.

  3. The amendments include a non-exhaustive list of purposes that a licensee may seek permission to enter an adjoining property, while also obligating the licensee to reimburse the adjoining owner with any architect’s or engineer’s fees incurred in connection with the improvement or repair.

  4. It codifies protections for adjoining property owners by listing out the conditions and liabilities of the permission that the licensee is responsible for.

  5. It provides a detailed guide on what the court is authorized to do pursuant to § 881.

How does S1305 Impact Developers in New York?

The proposed amendments level the playing field between developers and property owners. Developers can now obtain a judicial license for permanent encroachments like straps or wall ties. Under the original language, this was not possible leaving developers stuck choosing whether to redesign their plans or paying out unreasonably large sums of money to predatory property owners.

How does S1305 Impact Cooperatives and Condominiums in NY?

Access agreements should be easier to negotiate as the parameters are clarified.  Property owners benefit significantly from the increase in the proposed modifications, which now codify the process for acquiring licenses and their limitations. By all accounts, negotiating access agreements on behalf of cooperatives and condominiums should be less time consuming and costly. Further, reliance on the judicial process to effectuate necessary access should decrease. 

While the S1305 is far from a comprehensive guide, it is a step in the right direction towards consistency and efficiency when access is desired or required.

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