What the Franklin Carroll Case Teaches About RPAPL 881, Trespass, and Construction Access in NYC

Introduction

In the evolving world of New York construction law, few statutes are more frequently litigated—and misunderstood—than RPAPL 881. A recent decision from the Appellate Division, Second Department, Franklin Carroll, LLC v. Carroll Development Plaza, LLC, 2025 NY Slip Op ___, sheds new light on how courts approach access disputes between neighboring property owners. This case is a must-read for developers, adjoining property owners, and real estate counsel navigating the complex terrain of temporary construction licenses.

At James J. Corbett, P.C., we closely monitor key access decisions to ensure our clients—often owners of properties adjacent to major developments—are fully protected. Below, we break down what this case means and how it impacts real-world access agreement negotiations and enforcement.

Background: When a License Agreement Expires but Construction Proceeds

In Franklin Carroll, the parties had previously entered into a 2019 license agreement allowing a developer access to install temporary protections on the adjoining property. The license was never acted upon, and it expired in 2021. But in 2023, the developer entered the property and began work anyway—without a new agreement in place.

The adjoining owner sought a preliminary injunction and damages for trespass. The developer responded with a cross-motion under RPAPL 881 for a judicial license. The trial court denied the injunction and granted the license. On appeal, the Second Department affirmed.

Key Takeaways for Property Owners and Counsel

1. Courts Can Grant RPAPL 881 Licenses Even After Unauthorized Entry—But Only Prospectively

The court emphasized that the license was not granted nunc pro tunc. The defendant’s prior trespass remained actionable, even as the court authorized future access under specific conditions.

2. Terms of Prior Agreements Can Shape Court-Imposed License Conditions

The court adopted the licensing fee structure and conditions of the expired 2019 agreement, showing that prior negotiations—even failed ones—can influence judicially imposed terms.

3. Reasonable Conditions Protect the Adjoining Owner—And Limit Damages

The court required the developer to:
– Pay substantial monthly license fees
– Name the adjoining owner as an additional insured
– Repair any physical damage caused by the access

This reinforces that a license under RPAPL 881 is not a free pass—it’s a court-supervised privilege with safeguards.

4. Injunctive Relief May Be Denied Even Where Trespass Occurred

Despite a strong argument for trespass, the court found that removing temporary protections could jeopardize public safety and the adjoining property. The balance of equities favored the developer at that stage.

Why This Case Matters

For adjoining property owners in NYC—especially condominium boards and co-op buildings—this decision signals that courts are willing to issue access licenses when safety and construction needs require it. However, unauthorized entry carries legal risk and financial consequences.

To learn more or to request a consultation regarding a construction access matter, contact James J. Corbett, P.C. today (https://jamesjcorbett.com/construction-access-agreement/).