Compelled Access to Neighbor's Property for Construction - RPAPL 881

 I saw a blurb in the law journal today about this decision, In Re 1643 First LLC v. 1645 1st Ave LLC, 2024 NY Slip Op 01111 (1st Dept. 2024), and it deals with an interesting issue that I've addressed a few times on both sides and would like to handle more of.  

A neighbor can be required to give temporary access to their property to enable construction, such as a fence contractor needing to cross the property line to do the work even if the fence itself is going to be on one side of the line.  With fences, hopefully people act neighborly, but it become a major issue in New York City where buildings can be right up to the line and sometimes even share a common wall, and construction projects can involve prolonged periods of scaffolding and similar inconvenience to the neighbors.  Ideally, those issues are worked out voluntarily between the neighbors with a licensing agreement, but sometimes people can't agree or just won't cooperate.  If that happens, RPAPL 881 lets the Court impose a reasonable licensing agreement, which includes a fee for the use of the property, measures to make sure the adjacent owner is fully protected (both in terms of safety issues and in terms of making sure they are fully insured and indemnified), and the neighbor is generally entitled to any reasonable costs and fees they incur.  

In 1643 First v 1645 1st, the lower court judge didn't allow for expansive indemnification language and denied the neighbor's request for fees.  On Appeal, a panel from the First Department (which covers Manhattan and the Bronx, and is great -- they tend to know what they're doing, particularly with these types of issues, and work faster than the other Departments) reversed, finding that the neighboring owner needed to be fully protected, and that the lower court judge cannot deny fees without explaining why they were denied and can only do so if the fees were "unreasonably incurred" or the denial was necessary to "redress the prejudice caused to petitioner by respondent's litigation errors and any other misconduct."  

Kennedy v. Bremerton - Non-Coercive Post-Game Prayers by Coach Protected by First Amendment

 I have a lot of thoughts on the Supreme Court's decisions over the last week, but unfortunately not enough time for something comprehensive at the moment.  Here's my quick take on the most recent one:

* Kennedy v. Bremerton: 

Gorsuch Majority Opinion: Coach's post-game prayers are protected by the 1st amendment, provided students aren't coerced to join.  Religious expression is protected by the constitution, not treated as "second class speech."  The Free Speech and Establishment clauses should be complimentary, not in conflict, and must be read based upon the "understanding of the Founding Fathers."  

Thomas/Alito Concurrences:  Notice we didn't talk about the appropriate standard of scrutiny. That was on purpose.  The standards might be different under different circumstances, who knows anymore.  

Sotomayor/Breyer/Kagan Dissent:  The majority just changed decades of precedent again, based upon a factual narrative of someone saying a quiet private prayer, but here's photos of a public school coach in an area with diverse religious backgrounds leading a large group of students in a Judeo-Christian prayer. 

My analysis: I tend to agree with a lot of the majority opinion, even if it's a change in the law, although they seem to oversimplify the facts and issues.  Within appropriate parameters when it comes to pubic institutions, religious expression is supposed to be protected by the constitution.  But, it's a tough issue, and the Court has made it more difficult by continuing to move away from using standards of scrutiny (which has been going on for years, and isn't a left/right issue, and is a huge change).  They're re-writing the last century of constitutional law.  One concerning issue is that the majority compares the 50-yard line prayers to a Muslim teacher being allowed to wear a headscarf, but I don't see those as in any way comparable unless the teacher was also passing out headscarfs to students.  It's not clear the outcome would have been the same if it was a coach leading groups of students in kneeling towards mecca while praying Islamic prayers.    The Establishment and Equal Protection Clauses requires, and this Court may well strongly agree that they requires, that all types of religious expression receive the same protection.  Parts of the majority opinion read more like a brief (why is the coach being a veteran relevant, let alone so prominently noted?).  It's a very different approach than the Court has taken in a long time, and the is part of a major shift in the whole field of constitutional law. 

U.S. Supreme Court

So on Monday, March 21st, the US Supreme Court approved my admission, and denied a petition for certiorari that I’d drafted the brief in opposition for.  The arguments went deep into due process, equal protection, and takings jurisprudence, so I had an opportunity to draft what I thought was a very solid summary of the Court’s key precedents in those areas, and why there’s no need to revisit the issues in response to this case. While we’d gotten the case dismissed, I had argued before the lower courts that shouldn’t exercise jurisdiction, and in seeking cert the Plaintiff argued that Knick v Scott had expanded federal jurisdiction over state land use matters, so also had the chance to preliminarily brief some nuanced jurisdictional issues as well.  

I do a lot of constitutional and civil rights litigation, including a fair amount before the Second Circuit, so practicing before SCOTUS in the future isn’t unrealistic, and it is something I really hope to have the opportunity to do.  If I’m that lucky, it would presumably evolve out of my existing federal appellate work, but now that I’m officially admitted if anyone needs an attorney for petitioning for or defending against cert, or drafting an amicus brief, please keep me in mind.  

RPAPL 881 Can Be Used to Compel Access to A Neighbor's Property Where Necessary For Construction

When access to a neighboring property is necessary to complete an improvement, New York Law provides a qualified right to seek a Court Order compelling such access.  Real Property Actions and Proceedings Law § 881 states:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of or otherwise arising from the entry. 

“In determining whether or not to grant a license pursuant to real Property Actions and Proceeds Law § 881, courts generally apply a standard of reasonableness” (In re Board of Managers of Artisan Lofts Condominium, 114 AD3d 491, 492 (1^st Dept. 2014) .  The Court  “must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted,” and the “factors which the court may consider in determining the petition include the the nature and extent of the requested access, the duration of the access, the protections to the adjoining property that are needed, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage and inconvenience resulting from the intrusion.” Queens College Special Projects Fund, Inc v Newman, 154 AD3d 943, 944 (2d Dept. 2017)

The Court’s discretion in applying RPAPL 881 is also constrained and guided by important constitutional considerations. Granting a license for access over a property owner’s objection has “similarities to an eminent domain proceeding,” and is essentially a “forced temporary easement” that is justified by “benefit to the public” in fostering improvements to neighboring private property.  North 7-8 Investors, LLC v. Newgarden, 43 Misc. 3d 623, 632 (Kings Co., 2014); (See also NYS Const., Art. I, § 1; U.S. Const., Amends. V and XIV).  In bringing this application and invoking the Court’s equitable jurisdiction, a Petitioner is asking the Court to “reconcile two competing objectives central to regulatory takings doctrine: the individual's right to retain the interests and exercise the freedoms at the core of private property ownership… and the government's power to adjust rights for the public good.” Murr v. Wisconsin, 137 S.Ct. 1933, 1942 (2017)(discussing “complex” regulatory takings involving less than a complete deprivation beneficial or productive use).  Additionally, the intrusion potentially implicates a person’s right to be “secure in their… houses… against unreasonable searches and seizures,” or at least related policies and principals whereby such a request should not be granted without sufficient cause.  U.S. Const., Amend. IV and XIV; Jacobowitz v. Bd. of Assessors for Town of Cornwall, 121 A.D.3d 294, 296 (2d Dept. 2014)(4^th Amendment is not limited to criminal matters, but also applies to inspections for the purpose of property appraisals).  

  Local regulations, particularly in New York City, may supplement RPAPL§ 881.  The City's Building Code, including various sections in Chapters 18, 28  contains various safety requirements, as well as a procedure wherein an owner can make a pre-action request for access which, if unreasonably denied, gives the person seeking access the ability to shift the cost of protecting the neighboring site to the adjoining owner.  Chapter 18 contains requirements related to conducting excavations near another property owner’s foundation and requires, among other things, preparation of a pre-construction report by an engineer that examines the risk to the adjacent structure, underpinning or shoring where necessary, and a monitoring program with oversight from the Department of Buildings. (NYC Building Code § 1803.1 and 1814.1 – 1814.3.).  Section 28-110.1 provides for the preparation of a detailed Site Safety Plan that satisfied twenty-ones  requirements, which should – among other things – identify the locations of all fences, gates, guardrails, loading areas, hoists, sidewalk sheds, horizontal or vertical netting, foot bridges, temporary elevators, and ramps; provide specific details regarding crane information, street or sidewalk closing locations, all “surrounding buildings, indicating occupancy, height and type of any required roof protection;” and all “required safety netting and scaffolding;” and be accompanied by  “a copy of the proposed site safety manager or site safety coordinator's certificate, as applicable, including the certificate for any alternate site safety manager or site safety coordinator.”  

Section 3309 of the NYC Building Code, entitled “Protection of Adjoining Property,” imposes strict liability for damage to a neighboring property during construction or demolition, but creates a framework for providing notice of an intention to seek a licensing agreement so as to facilitate adjoining property owners engaging in good faith negotiations as to appropriate terms, with the cost of protecting the neighboring property potentially shifted to the neighbor if they unreasonably withhold consent. New Life Holding Corp. v. Turner Const. Co., No. 650993/2011, 2014 WL 5023524, at *15 (N.Y. Co. Sup. Ct., 2014). To invoke this provision, a developer seeking access must provide their neighbor with a detailed notice at least 60 days prior to commencement of work, with a second notice at least 30 but not 45 days prior to commencement of an action seeking a license.  (NYC Building Code § 3309.1.1).