An update from Cornerstone on access licenses, construction risk, and title due diligence
New York developers are no strangers to tight lots, shared walls, and neighbors who suddenly become very interested in your construction plans. With the recent update to Real Property Actions and Proceedings Law Section 881, the rules governing access to adjoining property have officially changed.
From a New York developers’ perspective, these changes matter well before construction begins. They can affect due diligence, underwriting, financing timelines, and how risk is evaluated at closing. If you are developing, expanding, or renovating property in New York, this is a statute you want to understand.
What RPAPL Section 881 Does
RPAPL Section 881 allows a property owner or developer to seek a court ordered license to temporarily access an adjoining property when work cannot reasonably be completed without that access.
In the past, when these matters could not be resolved amicably between contiguous property owners, often this led to litigation. Historically, courts handled these cases inconsistently. The amended statute now provides clearer standards, explicit procedures, and more predictability for owners, developers, lenders, and title insurance companies.
A More Practical Standard for Access
Under the amended law, if access is denied, a developer must show in court that the work cannot be completed in a commercially reasonable manner without access to the neighboring property.
This is an important shift. The old standard often required proof that work was virtually impossible without access. The new standard reflects real world construction conditions in New York City and other dense markets where limited space is the norm.
Silence From a Neighbor Now Counts as a Refusal
The statute also provides a clear rule for nonresponsive neighbors. If a property owner fails to respond to more than one written request within sixty days, that silence is treated as a refusal. This allows developers to move forward with court proceedings without being stuck in limbo.
Developers must show that the adjoining owner was provided information relevant to the project including construction plans and drawings, engineering reports and surveys, and proof of insurance. Courts were already asking for this in many cases. The statute now makes it mandatory.
Compensation Is No Longer an Open Question
The amended law explicitly states that adjoining owners are entitled to reasonable compensation for loss of use, inconvenience, or diminished enjoyment of their property. Courts may also require developers to reimburse reasonable professional review costs.
This matters for budgeting, lender review, and title underwriting. Known financial exposure is far easier to assess than open ended uncertainty.
License Duration Must Be Based on Good Faith Timelines
Access licenses must now reflect a good faith projection of how long access will be needed. Courts may allow extensions when delays are justified, but developers are expected to act reasonably and efficiently.
No Court Ordered Access to State Owned Property
If the adjoining property is owned, leased, or occupied by a state entity, including the MTA or similar authorities, courts cannot grant access under RPAPL Section 881.
This is a critical issue during New York title searches near transportation corridors or public infrastructure. These scenarios require early identification and alternative planning.
What Developers Should Do Next
Before breaking ground, developers should:
- Address potential access needs during site selection
- Send written access requests early
- Coordinate legal strategy with title due diligence
- Confirm how access licenses will be reflected in title coverage
In New York development, access issues are rarely a surprise. The real risk is discovering them too late.
The Title Company Perspective
At Cornerstone, we view RPAPL Section 881 as more than a litigation statute. It is a title risk management issue that should be evaluated alongside zoning, easements, restrictions, and historic agreements. A proper review of a project survey will identify areas that may present access issues. Early analysis of surveys with experts at Cornerstone will help New York developers evaluate potential areas that will require access agreements. Additionally, Cornerstone can research and review records to determine whether any covenants, restrictions and easements might affect access.
With experience across thousands of New York transactions, including complex development sites, we help developers identify potential access issues early and structure transactions that support financing, construction, and clean title.
If you are planning a development and want a title company that understands how construction law, access rights, and underwriting intersect in New York, involve us early. It makes a measurable difference.
The fine print is where projects get delayed. We read it so you can build with confidence.
