The New York Appellate Division, Second Department’s recent decision in Matter of QB Development Owner, LLC v. Hensley, confirms that RPAPL 881 authorizes court-ordered access not only for active construction activities but also for post-construction remedial work necessary to complete a project and obtain a certificate of occupancy. The decision represents a significant development in the Second Department’s evolving RPAPL 881 jurisprudence. While the Court reaffirmed the familiar equitable principles governing applications for temporary access licenses, the decision is noteworthy because it applies those principles in the post-construction context, confirming that RPAPL 881 remains available when temporary access is necessary to remedy construction-related conditions and satisfy regulatory requirements.
The dispute arose after construction of the petitioner’s project was substantially complete. During construction, the parties entered into a license agreement permitting the developer to access the adjoining property, but that agreement eventually expired. Thereafter, the developer discovered that a portion of a concrete slab encroached onto the neighboring property. When the adjoining owners refused access to remove the encroachment, the New York City Department of Buildings advised that it would not issue a certificate of occupancy until the condition was corrected. After the parties were unable to negotiate a new license agreement, the developer commenced an RPAPL 881 proceeding seeking temporary access to the adjoining property to remove the encroachment.
Affirming the Supreme Court’s order granting the license, the Second Department reiterated that RPAPL 881 requires courts to balance the competing interests of the parties by considering, among other things, the necessity and scope of the requested access, the duration of the intrusion, the availability of reasonable alternatives, the public interest in completion of the project, and the protections afforded to the adjoining owner. Applying those principles, the Court concluded that the proposed work could be completed in approximately three days without jeopardizing either structure, was necessary to obtain a certificate of occupancy, and adequately protected the adjoining owners through a license fee, insurance coverage, and compensation for any resulting damage.
QB Development Owner represents a continuation of the Second Department’s increasingly pragmatic interpretation of RPAPL 881. In Matter of Queens Coll. Special Projects Fund, Inc. v. Newman, the Court emphasized that temporary licenses should be granted where necessary to facilitate construction while protecting adjoining owners through reasonable conditions. The Court further refined that framework in Matter of Voron v. Board of Managers of the Newswalk Condominium, identifying the principal factors governing the equitable balancing analysis, including the necessity of the requested access, the duration of the intrusion, available alternatives, the public interest in completion of the project, and financial protections for the neighboring owner. QB Development Owner does not change those principles; rather, it demonstrates that they apply with equal force when access is required to remedy a construction-related condition after substantial completion of the work.
The Court also rejected the adjoining owners’ argument that the controversy became academic upon expiration of the parties’ prior license agreement. Consistent with its reasoning in Franklin Carroll, LLC v. Carroll Development Plaza, LLC, the Court concluded that changing circumstances do not necessarily moot an RPAPL 881 proceeding where access remains necessary to complete the project. The decision recognizes that unforeseen issues may arise after construction, requiring temporary access even after an original license agreement has expired.
QB Development Owner reinforces the expansive reach and equitable nature of RPAPL 881 proceedings. The decision confirms that the statute is not intended merely to facilitate construction activities but to provide courts with sufficient flexibility to resolve access disputes whenever temporary entry is necessary to complete lawful improvements or satisfy regulatory requirements. Construction projects often require additional work after substantial completion. Corrective work, punch-list items, Department of Buildings requirements, and the removal of encroachments may all require temporary access to adjoining property. This decision confirms that RPAPL 881 remains available in those circumstances, provided the requested access is necessary, limited in scope, and includes appropriate protections for the adjoining owner.
Together with Queens College, Voron, and Franklin Carroll, QB Development Owner further confirms the Second Department’s view that RPAPL 881 is a flexible equitable remedy that permits necessary construction and post-construction work while protecting adjoining owners through appropriate court-imposed conditions. For developers, the decision provides assurance that RPAPL 881 remains available when unforeseen conditions discovered after substantial completion require temporary access to neighboring property. For adjoining owners, the decision reinforces that courts will continue to balance competing interests through license fees, insurance requirements, and compensation for any resulting damages.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.