New York Overhauls RPAPL § 881—Big Changes for Construction Access Agreements

On December 5, 2025, Governor Kathy Hochul signed Senate Bill S3799, amending § 881 of New York’s Real Property Action & Proceedings Law (“RPAPL”) effective immediately. The amendments to RPAPL § 881 will likely have a large impact on the construction license agreement industry in New York City. Most notably, the amended version of RPAPL § 881 defines the standards for obtaining access, specifies the purposes for which a licensee may seek access under the statute, provides certain conditions for any licenses granted by a court, and provides courts with a greater latitude of discretion in resolving access requests.

Refusal of Access

Previously, RPAPL § 881 did not specify what constituted a “refusal” on behalf of an adjoining owner. Now, under the amended RPAPL § 881, “refusal” is defined as “instances where more than one written notice has been served, by certified mail, on the owner and has not been responded to within sixty days.” There must be a “refusal” on behalf of the adjoining owner in order for a licensee to bring an 881 proceeding.

Parties to the Proceeding

Under the amended RPAPL § 881, at the licensee’s request, the adjoining owner must provide the licensee with the necessary information to identify all lessees of the adjoining property so that they may be joined in the proceeding. This was not previously a requirement under § 881 and could lead to increased litigation timelines, depending upon the number of lessees involved.

Scope of Permissible Access

Under the previous version of RPAPL § 881, the purposes for which a licensee was permitted to seek access were not defined. Pursuant to the amended statute, licensees may seek permission to enter an adjoining property for the following purposes:

1. preconstruction surveys;
2. installation of monitoring devices;
3. roof, and other exterior protections (e.g., sheds, netting, mechanical protection);
4. scaffolding;
5. sheeting, shoring, bracing, or other retaining structures needed for demolition, support or excavation;
6. foundation or building supports (e.g., underpinning, tie-backs) — only if required by law;
7. weatherproofing;
8. temporary airspace intrusions;
9. temporary or permanent relocation of rooftop equipment (e.g., chimneys, vents, flues);
10. construction staging; and
11. other measures required by law or good construction practice.

Conditions of a License Granted Pursuant to RPAPL § 881

The amended RPAPL § 881 includes a number of conditions and requirements for any license granted by a court. Most notably, licensees are now required “to reasonably compensate the adjoining owner for the loss of use and enjoyment of the adjoining premises including diminution in value.” Additionally, moving forward, all licenses granted by a court shall be subject to the following conditions:

1. licensees must provide adjoining owners with reasonable prior notice before exercising any right of entry, except in the case of an emergency;
2. the duration of the license must be based on a “good faith projection of the dates and estimated duration of any entry to the adjoining property”;
3. licensees must provide all relevant documents (plans, specifications, evidence of insurance, etc.) prior to installing, maintaining, inspecting, repairing, replacing, or removing any devices, structures, materials, or equipment on the adjoining property; and
4. any licensee and/or contractor accessing the adjoining property must procure and maintain commercial general liability insurance naming the adjoining owner and/or its lessee(s), as additional insureds.

Court Discretion 

Under the amended RPAPL § 881, courts have been given more discretion in terms of what they can consider when resolving a request for access. Specifically, in granting a license or otherwise resolving an 881 proceeding, a court is now authorized to:

1. consider evidence of prior non-compliance by either party;
2. obligate the licensee to reimburse the adjoining owner for its reasonable professional fees incurred in connection with the review of plans, specifications, surveys, and engineering reports for the installation, maintenance, inspection, repair, replacement, or removal of devices, structures, materials, or equipment on the adjoining property; and
3. insure for damage to property and persons in the event there is a “unique, physical occurrence causing physical damage to property or persons caused by the access.”

Takeaway

Developers and property owners should make note of these changes and be aware that they took effect immediately on December 5, 2025. For more information on the amended RPAPL § 881 and construction license agreements, please reach out to your attorney of record or contact us here.

Written by: Zachary Rozycki and Hallil Gecaj.