As we advised in June 2019, there was an unprecedented decision by Justice Melissa Crane of the New York State Supreme Court, New York County, whereby the Court granted permission to a developer pursuant to Real Property Actions and Proceeding Law §881 (RPAPL 881) to underpin a neighbor property. CUCS Housing Development v. Clifford S. Aymes (Index No. 159303/2018). The underpinning, which constitutes a permanent encroachment, had long been held by New York State Courts to be outside the Court's jurisdiction under the statute, which was enacted to address temporary access to neighbors' properties to perform improvements to one's property.

The nuances of the CUCS case: a sympathetic plaintiff/developer building affordable housing v. the owner of a vacant and run-down property who simply refused, without offering any reason for the objection to allow the underpinning, raised questions as to whether it would be applied in other cases. It appears we may now have that answer.

On December 6, 2019, Justice Eileen A. Rakower of the New York State Supreme Court, New York County, citing the CUCS case, awarded a developer the right to install tie backs into a party wall shared by the petitioner's and respondent's properties. Tompkins 183 LLC, v. Marsha Frankel, Index No.: 159644/2019. The tie backs, like the underpinning in the CUCS case, would remain permanently after the conclusion of the petitioner's work. Unlike the CUCS case, there was an objection to the party wall tie backs and both parties' engineers testified. However, the Court relied on CUCS for the premise that if the petitioner demonstrates that the encroachment is unavoidable it can be permitted.

The Court, following the precedent of CUCS, concluded that the installation of the party wall tie backs was minimal, the protection of the party wall was necessary and weighed the interests of the parties in favor of the Petitioner.

Since party walls are shared by the properties, it is unclear whether the Court would have reached the same conclusion had the tie backs been installed into a wholly independent wall on the respondent's property. What seems to be clear is that the long standing "line in the sand" that permanent encroachments cannot be awarded pursuant to RPAPL 881 seems to be eroding, which will have an extraordinary impact on how license agreements and RPAPL 881 actions are negotiated going forward. We will continue to watch for developments on this topic.