May 21, 2025 – James J. Corbett, P.C., New York City
What Happened in the Boerum Hill Case?
Boerum Hill Property Holdings, LLC had already drilled over 100 tie rods into a neighboring wall without a written agreement or valid permission. This action, characterized by the court as a trespass, not only led to significant structural concerns and water infiltration but also effectively blocked the petitioner from receiving a court-issued access license to continue construction.
Justice Maslow ruled that granting a license under RPAPL § 881 requires more than just showing necessity. Developers must prove their good faith, submit engineer-approved plans, and avoid actions that create permanent encroachments without consent. The tie rods in this case were embedded in the respondent’s wall and would have become permanently inaccessible once the new building was erected, raising serious legal and structural issues.
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. Prior Conduct Matters:
Courts are less inclined to reward parties who violate property lines before applying for a license.
2. RPAPL § 881 Is Discretionary:
It allows—but does not guarantee—access. The burden of proof is on the petitioner.
3. Permanent Encroachments Will Not Be Authorized:
Temporary access does not authorize structural modifications to a neighbor’s property.
4. Clear Engineering Plans Are Critical:
Courts expect precise, licensed proposals outlining the scope of access and remediation.
Why This Case Matters for New York City Construction
For owners of adjacent properties, this decision underscores the value of hiring counsel early to review and negotiate access requests. For developers, it’s a cautionary tale: act first and seek permission later may cost you more than just delay—it could halt your entire project.
At James J. Corbett, P.C., we represent property owners throughout New York City in construction access negotiations, with a focus on ensuring our clients are compensated, protected, and not subjected to unnecessary risk or permanent encroachments.
Related Legal Citations
Matter of Boerum Hill Prop. Holdings, LLC v 159 Smith, LLC, 2025 NY Slip Op 50647(U) (Sup. Ct. Kings County Apr. 23, 2025)
RPAPL § 881 – Access to adjoining property for improvements and repairs
DDG Warren LLC v Assouline Ritz 1, LLC, 138 A.D.3d 539 (1st Dep’t 2016)
Need help with an access agreement?
📍 31 West 34th Street, 7th Floor, New York, NY 10001
📞 646-470-1107
🌐 https://jamesjcorbett.com
