Court Grants Access To A Downstairs Apartment For Repairs And Improvements To The Upstairs Apartment

Written By: Eugene H. Goldberg

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New York Real Property Actions and Proceeding Law (RPAPL) §881 allows one neighbor, developing (repairing or improving) his own property, to obtain a court order granting temporary access to an “adjacent” neighbor’s property for work associated with the development. The order is with conditions, such as the developing neighbor providing protection, insurance, and sometimes an access/license fee.

RPAPL §881 has counterparts in Michigan, South Carolina, Toronto, England, several Australian states, France, and Quebec. 

What is “adjacent” property? To date, this had only been considered on a flat earth: the adjacent property was on the other side of the boundary line. A 1985 United Kingdom Law Commission report suggested that “adjacent” in a multi-story apartment building could be the apartment on the floor above or below. 

At last, there is a decision holding that the apartment below is “adjacent.” 

In the Matter of Voron v. Board of Managers of the Newswalk Condominium, 63 Misc.3d 1001 (Sup. Ct. Kings Co. 2019), affirmed, 186 A.D.3d 833 (2nd Dept. 2020), the upstairs condominium apartment owner wanted temporary access to the residential condominium apartment immediately below. The downstairs apartment was held to be “adjacent.”

This decision will allow upstairs lessees and condominium apartment owners access to the apartment below in order to undertake repairs and/or improvements.

Meeting RPAPL §881’s requirements involve engineering, compensating, and protecting the downstairs apartment owner, and other aspects. Often a license agreement is negotiated. When negotiations fail, the courts are the last resort. You should consult with an attorney early in the process.

about the authors

Eugene H. Goldberg


​Mr. Goldberg has practiced construction law for over 40 years on all sides of the construction triangle (contractor owner designer), including materialmen, engineers retained by architects, inspectors approving the release of monies under building loans, and sureties. He emphasizes insurance coverage in his handling of matters.

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