Sean T. Scuderi | Tarter Krinsky & Drogin
Property owners who face issues concerning disruption caused by buildings on adjacent properties often don’t realize or fully utilize the real estate laws that can protect and help alleviate related disturbances and interference.
Section 881 of the Real Property Actions and Proceedings Law (RPAPL) is an effective vehicle for both developers and impacted neighbors to take advantage of. Tarter Krinsky & Drogin’s Construction Practice secured a significant victory for impacted property owners in New York State utilizing this law, which now serves as a precedent-setting case for obtaining relief and compensation, particularly for property owners affected by adjacent construction projects.
Court Ruling Victory
In the ruling, the court granted a Real Property Actions and Proceedings Law (RPAPL) Section 881 petition brought by Tarter Krinsky & Drogin’s team on behalf of a property owner who had a sidewalk shed encroaching in front of its building since 2019. The sidewalk shed was constructed in furtherance of construction taking place at the adjacent property. The construction project was stopped, and the adjacent property was left in an unsafe condition, which required the sidewalk shed to stay in place. The adjacent property owner took no steps to actively remediate conditions at its property.
The Court compelled the adjacent property owner to accept a judicially-created license to maintain the sidewalk shed. The ruling not only provided relief for the client – but it also established important legal principles for future cases.
Key outcomes of the case include:
- Precedent-Setting Standing: The court recognized the standing of affected property owners to directly initiate a RPAPL Section 881 special proceeding, as opposed to conversion of RPAPL Section 871 or plenary actions to compel removal of the trespasses. Typically, RPAPL Section 881 proceedings are initiated by developing property owners to access adjacent properties. This is one of the first times an affected property owner has directly commenced an RPAPL Section 881 petition to compel a developing property owner to a license.
- Precedent-Setting Retroactive License Fees: The court awarded retroactive license fees to the affected property owner from the date the sidewalk shed was first placed in front of its property.
- Precedent-Setting Reimbursement of Professional Fees: The court also awarded reimbursement of the affected property owner’s reasonable attorneys’ and engineering fees – a first of its kind in a “reverse” RPAPL § 881 proceeding.
- Comprehensive License Terms: The court also imposed extensive terms on the adjacent property owner, including insurance and indemnification protections, restoration of the property to its original condition, and measures to protect the property owner’s quality of life.
The landmark victory demonstrates the need for license agreements. They are necessary to protect affected property owners from construction projects and allow the parties to clearly dictate the terms of access. Absent an agreement, Section 881 of the Real Property Actions and Proceedings Law (RPAPL), provides both parties with opportunities to seek access and license terms through the court.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.