When a construction project in New York City requires access to a neighboring property, disputes are often resolved through license agreements or, when necessary, a petition under RPAPL § 881. But one common and critical question is: Will the court require the developer or petitioner to post a bond as a condition of access under the RPAPL 881 bond requirement?

The answer depends on multiple factors, including the scope of work, degree of intrusion, and the potential for damage or disruption to the adjoining property.

Understanding RPAPL § 881

Under RPAPL § 881, an owner or lessee seeking to make improvements or repairs that require access to an adjoining property—but who has been denied permission—may petition the court for a license to enter the property. The statute provides that such access “shall be granted by the court in an appropriate case upon such terms as justice requires. ”Those “terms” are where bonds and other financial protections often come into play.

When Courts May Require an RPAPL 881 Bond Requirement

Key Considerations Include:

Extent of Intrusion: Minor access (e.g., for inspections or scaffolding installation) may not warrant a bond.
Risk of Property Damage: More intrusive work—such as excavation, underpinning, or the erection of cantilevered balconies—often justifies financial protection.
Prior Conduct of Developer or Contractor: Courts may consider the petitioner’s past compliance with access terms or building code requirements.
Insurance Provisions: If comprehensive insurance and indemnity terms are already included in the agreement, courts may view a bond as unnecessary.

Whether or not a court imposes an RPAPL 881 bond requirement depends largely on the project’s scope and the level of risk to the adjoining property.

Case Law and Commentary

In Matter of Spence v. Strauss Park Realty, LLC, 2022 NY Slip Op 06894, the court granted the petitioner access to repair a shared retaining wall but declined to award license fees or require the posting of a bond, noting there was no substantial interference with the respondent’s use of the propertyLicense Fees.

However, in more intrusive projects, courts have taken a different stance. In Chan v. Crown Wisteria, Index No. 151966/14 (Sup. Ct., N.Y. Cty. 2015), involving a $10 million townhouse renovation, the court approved a negotiated license fee of $10,000 per month and required a jointly submitted license agreement—which often includes bonding provisions to secure performance and cover potential damageLicense Fees.

The court’s authority to require a bond derives directly from its equitable powers under RPAPL § 881 to impose “such terms as justice requires.” This flexibility allows the court to shape access conditions based on the specific facts of the case.

Best Practices for Developers and Property Owners Dealing with the RPAPL 881 Bond Requirement

At James J. Corbett, P.C., we recommend the following:

Be prepared to offer a bond if your project involves major construction, demolition, or excavation.
Include clear insurance and indemnity provisions in your proposed license agreement to reduce the need for a bond.
Negotiate in good faith, as judges often weigh a party’s cooperation when deciding whether to impose additional protections.

When we represent property owners or developers in RPAPL § 881 proceedings, we tailor each agreement to minimize litigation and protect our client’s interests—whether that means limiting scope of access, demanding compensation, or negotiating a reasonable bond amount.

Conclusion

Posting a bond in an RPAPL § 881 proceeding is not mandatory, but it is a common and powerful tool to safeguard the rights of adjoining property owners—particularly when construction activities pose a risk of damage or disruption.

Whether you’re a developer seeking access or a property owner protecting your home or investment, contact James J. Corbett, P.C. for guidance on crafting or contesting access agreements with comprehensive legal protection.

If you are experiencing difficulties enforcing a construction access license, contact James J. Corbett, P.C. today.

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