Amendment to RPAPL § 881 Authorizes Permanent Encroachments

On December 5, 2025, Governor Hochul signed a bill amending Section 881 of New York Real Property Actions and Proceedings Law (“RPAPL”), codifying years of case law concerning access to a neighbor’s property to install temporary protection during construction. This amendment is significant to all landlords and developers because, while it largely addresses provisions that are typically included in license agreements, it also authorizes courts to, among other things, grant access for the installation of permanent encroachments, such as underpinning and tiebacks — breaking from all precedent.

Until now, courts categorically denied developers’ applications to permanently install protective measures on a neighbor’s property. Courts viewed the permanent encroachments as trespassing and, as a result, refused to order adjacent owners to provide access for such permanent measures. Knowing this, savvy property owners and their attorneys often requested large lump sum payments as consideration for allowing their neighbor to underpin their property or denied the request outright. Developers then had to decide whether to pay their neighbor or redesign their project to eliminate the need for underpinning.

With the new amendment, it remains to be seen how much courts will deem to be reasonable compensation for the right to install a permanent encroachment. It should also be noted that, by permitting permanent encroachments, like underpinning, the new amendment raises constitutional questions about taking property rights and may be challenged in federal court.

Additionally, it is important to note that the amendment also clarifies when an adjacent owner’s delay in responding to a written request for access constitutes “refusal” to provide access, which is a predicate to filing an RPAPL § 881 petition in court. Specifically, the amendment codifies that if one or more written notices have been sent and not responded to within sixty days, such failure to respond constitutes “refusal” of access. This supplement supports that landlords or developers that anticipate requiring access to a neighbor’s property serve a written notice well in advance of the projected start date for the project.

Ultimately, the amended RPAPL § 881, overall, should benefit both developers and adjacent owners, creating a more predictable framework for applicable law and negotiations. It will remain best practice to seek a mutually acceptable license agreement with the neighboring property to ensure that the adjacent owner’s property is adequately protected, and the project owner’s project is completed safely, timely and cost-effectively.

R&E has extensive experience representing both project owners and adjacent owners with license agreements and RPAPL § 881 proceedings. We will provide updates as developments in the law arise and as we gain greater clarity regarding how enforcement of the amended law plays out in the courts.

If you have any questions or need assistance with any issues that may arise, please feel free to contact your trusted R&E attorney or Brendan Derr or Justin Weitzman who authored this industry update.