Retaining Wall Repair Case Sets Precedent for RPAPL 881 License Fees
This week we wanted to draw your attention to an interesting decision out of the 1st Department, which held, in part, that Real Property Actions and Proceedings Law (“RPAPL”) Section 881 (“Access to adjoining property to make improvements or repairs”), would not support an award of license fees, legal costs and expenses for the repair of a retaining wall that straddled the property line between two adjoining properties absent an affirmative showing of “substantial interference” with the use and enjoyment of the access area utilized to make the required repairs.
The relevant facts of, as well as a link to, the case are set forth below.
Under RPAPL Section 881, “[w]hen 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 improvements or repairs may commence a special proceeding for a license to so enter…”
Petitioners sought an Order granting them a license under Section 881 to allow them to enter the Respondent’s adjoining property to repair a deteriorated retaining wall on the property line. The Supreme Court, New York County, granted the license but denied the Petitioners’ request for the recovery of license fees, legal costs and expenses. The Appellate Division, First Department, affirmed the lower court’s ruling. According to the Appellate Division,
“…petitioner established the need to gain entry to respondent’s property; the court required petitioners to front the cost of the repairs or replacement of the wall and obtain insurance to cover respondent; respondent fails to raise any claim that the project substantially interfered with its use and enjoyment of the backyard space; and the court severed determination of the allocation of the costs of the wall, which might be a shared responsibility between the parties under section 211 of the 1916 New York City Building Code.”
The Court did not require the Petitioners to post a bond. Matter of Spence v. Strauss Park Realty, LLC, 2022 NY Slip Op 06894, decided December 6, 2022, is posted at https://www.nycourts.gov/
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