In the bustling construction landscape of New York City, where high-rises and renovations are constant, property owners often face requests—or demands—for access to their buildings from neighboring developers. These “access agreements” allow temporary (and sometimes more permanent) entry to install scaffolding, conduct surveys, or perform protective work, all while safeguarding your property rights. Governed primarily by New York’s Real Property Actions and Proceedings Law (RPAPL) § 881, these agreements balance a developer’s project needs against an owner’s control over their land.
At James J. Corbett, P.C., we represent NYC property owners like you—co-op boards, condo associations, and individual landlords—in negotiating, enforcing, and litigating these agreements. Whether it’s a voluntary deal or a court-ordered license under § 881, our goal is simple: protect your asset, minimize disruptions to tenants, and secure fair compensation. We’ve reviewed the latest from resources like our firm’s guide on NYC Construction Access Agreements and tracked legislative developments to bring you this detailed overview.
This blog dives into the current state of the law under RPAPL § 881, shaped by decades of case law and NYC Building Code requirements. We’ll then explore the proposed 2025 amendments (Senate Bill S3799B/Assembly Bill A357B), which passed the Legislature on June 13, 2025, and await Governor Hochul’s signature. If enacted, these changes could streamline processes for developers while codifying more protections for owners—potentially reshaping how access disputes play out in New York City courtrooms. We’ll compare the two side-by-side for clarity.
What Is a Construction Access Agreement?
Under current law, a construction access agreement is a binding legal contract granting a developer or contractor temporary rights to enter and use an adjoining property for construction-related activities. This often includes installing scaffolding, sidewalk bridges, protective netting, or conducting pre- and post-work surveys. NYC’s Department of Buildings (DOB) and Building Code frequently mandate these for facade restorations, window replacements, excavations, or any work impacting neighbors.
RPAPL § 881 steps in when negotiations fail: It allows the developer to petition Supreme Court for a “license” to access your property. Courts grant this “upon such terms as justice requires,” typically including insurance, bonds (if risky), and license fees based on use, duration, and disruption. Recent cases, have awarded fees from $200/day for light access to $5,000+ monthly for extensive scaffolding, plus attorney’s fees to prevailing owners.
The proposed amendments would formalize and expand this framework, explicitly allowing licenses for certain permanent encroachments (e.g., underpinning or wall ties) alongside temporary ones. They’d define “access” more broadly and require developers to provide detailed advance notice, potentially speeding up resolutions but giving owners clearer negotiation tools.
What Is RPAPL § 881 Under Current Law?
Enacted in 1968, RPAPL § 881 is a concise statute: “Where an owner… seeks to make improvements… and requires access to adjoining lands… which the owner thereof shall have refused, such owner may maintain a special proceeding…” The court issues a license balancing hardships.
Key current features:
- Temporary Focus: Traditionally limited to short-term needs; permanent structures (e.g., underpinning) require separate easements or heightened scrutiny.
- Refusal Trigger: Any withheld consent qualifies, but courts frown on bad-faith holdouts.
- Judicial Discretion: Terms vary—insurance ($1M–$5M typical), indemnification, bonds for high-risk work (e.g., deep digs), and fees tied to “actual damages.”
- Enforcement: Violations lead to contempt, damages, or injunctions; owners often recover fees.
Proceedings are expedited (60–90 days typical), but delays can hit 4–6 months in contested cases.
The Proposed 2025 Amendments: A Game-Changer?
As of November 10, 2025, the amendments await the Governor’s signature and would take effect 180 days post-signing (likely mid-2026). Sponsored to address urban density challenges, they codify judicial practices while tilting toward developer efficiency – critics say at owners’ expense. No major changes to the core petition process, but significant expansions.
For a clear comparison, here’s a table breaking down current law vs. proposed amendments across key categories:
| Category | Current Law (RPAPL § 881 + Case Law) | Proposed Amendments (If Enacted) | Implications for NYC Owners |
| Scope of Access | Primarily temporary (e.g., scaffolding, surveys); permanent encroachments (like underpinning) allowed via case law but rare and conditional (e.g., NYC Building Code mandates). | Explicitly permits permanent encroachments (wall ties, anchors, underpinning) if “necessary” for safety; includes pre/post-construction surveys. | Easier for developers to embed lasting features, but owners gain codified rights to higher fees and bonds; strengthens leverage in dense areas like Manhattan. |
| Refusal Standard | Broad: Any denial triggers petition; “silent refusals” can lead to court, but good-faith negotiation encouraged. | Defines “refusal” as no response within “commercially reasonable time” (10-30 days); requires developer notice with plans, timelines, insurance proof, and proposed terms. | Pressures owners to engage quickly but mandates transparency from developers – fewer surprise petitions, more prep time for attorneys like us at Corbett. |
| Court-Ordered Terms | Discretionary: Insurance ($1-5M, owner as additional insured), indemnification, fees ($200/day to thousands/month), bonds for risks (excavation, structural work); attorney’s fees often awarded to owners. | Mandates reasonable compensation (use/occupancy + damages/lost business), developer pays owner’s professional fees (engineers, attorneys) + court costs; requires liability insurance (min. limits TBD); bonds for compliance; “reasonable duration” with reporting. | Codifies fee-shifting and reimbursements, boosting owner protections; clearer standards could cut litigation but raise developer costs, indirectly benefiting negotiations. |
| Exemptions & Limitations | No broad exemptions, but MTA/public entities handled case-by-case. | Exempts MTA/affiliates – no licenses granted; must use alternative dispute resolution; excludes self-storage, certain state properties. | Shields private owners from MTA mega-projects; streamlines public works but doesn’t dilute core owner rights. |
| Enforcement & Timeline | Special proceedings: 60-90 days typical; violations via contempt, breach claims, injunctions; overstays yield damages/fees (e.g., recent Manhattan rulings). | Retains discretion for “terms as justice requires” but adds severability; no timeline changes, but notice rules may expedite. | Builds on trends awarding fees for violations; prompt action remains key – our firm enforces via clear contracts and documentation. |
JCPC’s Approach: Protecting You Before, During, and After
Drawing from our experience highlighted in the Corbett firm’s access agreement guide, we handle everything: reviewing developer proposals, negotiating ironclad terms (e.g., pre-construction surveys, overstay penalties), securing bonds/insurance, and litigating § 881 petitions. If amendments pass, we’ll adapt—using new notice requirements to front-load protections and permanent encroachment rules to demand premium compensation.
Common triggers? Facade repairs under Local Law 11, excavations near subways, or window swaps overhanging sidewalks—all DOB-mandated. We minimize tenant disruptions and ensure restoration obligations are bulletproof.
FAQs: Your Burning Questions on Access Agreements
We’ve incorporated insights from recent cases and the proposed changes into these answers:
What Happens If I Deny Access to a Developer?
Current: Developer petitions under § 881; court grants on “just” terms, potentially less favorable than negotiated (plus delay costs). With Amendments: Same process, but defined refusal timelines give you breathing room—respond strategically. Tip: Negotiate first; denial risks court but often yields attorney’s fees if you prevail.
How Much Does an Access Agreement Cost in NYC?
Current: $200/day minimal to $thousands/month extensive; factors: size, duration, disruption. Courts award your fees/costs. With Amendments: Codified “reasonable compensation” + mandatory pro fees; expect similar ranges but easier recovery. Recent Trend: Manhattan cases (2025) hit $10K/month for scaffolding overstay.
Will the Developer Post a Bond?
Current: Case-by-case for risks (e.g., underpinning); deeper excavations = higher likelihood. With Amendments: More likely for permanents; courts can require for compliance. Protection: We push for bonds in high-stakes deals.
What Insurance Is Required?
Current: $1–5M general liability, owner additional insured + indemnification. With Amendments: Mandated minimums; same core but explicit. Essential: Covers damage, injury—pre-document everything.
How Long Do § 881 Proceedings Take?
Current: 60–90 days standard; up to 6 months complex. With Amendments: No change, but notice rules may shave time. Advice: Act fast—our expedited filings protect you.
What Should My Agreement Include?
Current: Scope, duration, zones, restoration, insurance, fees, surveys, penalties. With Amendments: Adds reporting, defined terms—use for stronger drafts. Our Drafts: Always include enforcement teeth.
Who Pays Attorney’s Fees?
Current: Courts award to owners routinely, especially enforcement. With Amendments: Explicitly mandated for pros/costs. Win: Developer foots most bills.
Can Developers Install Permanent Structures?
Current: Via case law (e.g., code-required underpinning) with strings attached. With Amendments: Yes, explicitly—if necessary; higher comp/bonds. Caution: Demand surveys; permanents = premium fees.
What If Damage Occurs?
Current: Insurance/indemnification covers; litigate if needed. With Amendments: Stronger clauses; pre-docs key. Pro Tip: Baseline condition reports prevent disputes.
How Are Violations Enforced?
Current: Breach, contempt, injunctions; damages/fees common. With Amendments: Same, with clearer “overstay” remedies. Recent: Courts hit violators hard—e.g., post-expiration access.
Why Hire an Attorney Like Us?
Agreements expose you to massive liability; we recover costs from developers, navigate DOB codes, and adapt to amendments. Early involvement avoids “costly disputes,” as our guide notes.
NYC Code Triggers?
Facade/window work, excavations—amendments expand pre-evals, heightening needs.
Overstay Consequences?
Current/Amendments: Extra fees, injunctions—prompt suits win big.
Needed for Facade/Window Repairs?
Yes—mandatory; we secure comp pre-start.
Avoiding Disputes?
Our negotiation locks in terms, bonds, enforcement—reducing risks amid changes.
Final Thoughts: Stay Ahead of the Curve
RPAPL § 881 has evolved through courts to protect owners like you, but the 2025 amendments could modernize it for NYC’s boom. Whether current law or new rules apply, one thing’s constant: Knowledge is power. Track the bill via NY Senate and reach out for a free consultation at James J. Corbett, P.C. Call today—let’s safeguard your property before the scaffold goes up.
This post is for informational purposes; consult an attorney for advice. Last updated November 10, 2025.
