On December 5, 2025, Governor Kathy Hochul signed into law long-anticipated amendments to RPAPL § 881, the statute governing court-ordered access to adjoining property to perform construction work. The amended statute reflects, and in some respects adopts, recent judicial trends that had already begun to shape how courts evaluate access requests and disputes.
The amendments, which took effect immediately, follow several years of legislative activity during which multiple, and at times more expansive, revisions to the statute were proposed but not enacted. While the final version is narrower in scope than some earlier proposals, it nonetheless introduces meaningful changes that modernize the statute, codify certain practices that had developed through case law, and are likely to have a substantial impact not only on RPAPL § 881 proceedings, but also on private negotiations of access and license agreements.
Below are several of the most significant changes.
Key Highlights of the Amended RPAPL § 881
- Express authorization of permanent protections and safety measures.
The statute now expressly contemplates the performance of a broad spectrum of construction and protective work on the adjoining property. Critically, the statute now explicitly allows a licensee to seek access to install permanent structures including underpinning and other safety-related improvements. However, the section allowing access for foundation and building supports, such as underpinning, is available “where required by code, regulation or local law.” We await application of this clause by the courts to see if parties must consider all viable alternatives for support or if the court will analyze the commercially reasonable manner of the proposed access, as it will do with all other categories of access.
- Standard of proof
Notably, the standard for obtaining access has been revised: the petitioner must now demonstrate that the improvements cannot be made in a commercially reasonable manner without access, replacing the prior formulation that simply required a showing that the work “cannot be made” without access. This modification may make it less difficult to prove that certain permanent work or more intrusive access is appropriate.
- Identification and joinder of tenants
Adjoining owners are now required, upon request, to identify their tenants so that such tenants may be joined in the proceeding. This provision addresses a recurring procedural issue and should reduce disputes over whether license orders bind occupants who were not parties to the action.
- Project Owner’s Pre-access disclosure obligations
Project owners seeking access must provide advance notice and furnish relevant documents, expressly defined to include drawings, plans and specifications, engineering reports, surveys, and evidence of insurance for the work to be performed on the adjoining property. This formalizes what many courts already required, though it further clarifies the scope of the documentation to which a petitioner is entitled.
- Adjoining Owner’s Response – Silence deemed a refusal
The statute now explains that an adjoining owner’s failure to respond to multiple written requests for access constitutes a refusal, eliminating ambiguity over whether non-response can support commencement of an RPAPL § 881 proceeding.
- Compensation expressly codified—but with a defined evidentiary standard
While courts had long required compensation as a condition of access, the amended statute now expressly mandates reasonable compensation for “loss of use and enjoyment of the adjoining premises, including diminution in value,” placing a clearer burden on adjoining owners to substantiate such claims. There is a long line of case law discussing reasonable ranges of license fees for impacts to amenity spaces by temporary protections. The expansion of the statute to cover permanent encroachments, such as tiebacks and underpinning, will require the courts to determine reasonable compensation for these newly available forms of access.
- Reimbursement of professional fees tied to document review
Courts are authorized to require reimbursement of reasonable fees incurred in connection with the review of relevant documents relating to protective installations and access work. Whether this provision will be interpreted to include attorneys’ fees incurred in prosecuting or defending the RPAPL § 881 proceeding itself (or in negotiating a license agreement where the negotiation thereafter fails) remains an open question that will likely be addressed by future case law.
- License duration tied to good-faith projections rather than fixed schedules
The amended statute now expressly requires that the duration of any license be based on a “good-faith projection of the anticipated dates and estimated duration of access,” coupled with an obligation on the licensee to make commercially reasonable efforts to adhere to those estimates. Importantly, the statute recognizes the practical reality that access to adjoining properties is often sought early in a project and provides a mechanism for seeking court approval of extensions where good faith estimates later prove inaccurate. This change may reduce disputes over alleged schedule deviations and anticipated license terms, providing more flexibility when negotiating access terms.
- Express exclusion for access to MTA property
Where the adjoining property is owned, leased, or occupied by a state entity, including the Metropolitan Transportation Authority and its affiliates, courts may not grant access under RPAPL § 881.
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