This decision sets a new precedent in judicial recognition of RPAPL 881 access agreement disputes
NEW YORK, N.Y., Feb. 21, 2019 (SEND2PRESS NEWSWIRE) — Rukab Brash PLLC, a boutique New York City real estate law firm, successfully saved a Bronx developer from paying an adjacent property owner a license fee of over $8,000 per month and over $100,000 in professional fee reimbursement. The firm also helped the Bronx developer obtain access to the adjacent property in order to install New York City Department of Buildings required protections in connection with the its 12-story mixed use affordable housing development.
A once described “little-used law,” Real Property Actions and Proceedings Law 881 a/k/a RPAPL 881 is now increasingly being called upon to decide neighboring access disputes in New York City – and is considered required knowledge for landowners and developers in the Big Apple. The current economic and political climate of the City has dramatically increased the applicability of RPAPL 881 making each new court decision significant as it sets a new standard to expand this evolving legal area.
On January 18, 2019, Honorable Donald A. Miles of the Supreme Court, Bronx County, issued a Decision that granted the Developer the access being sought.
Jack Rukab, Partner at Rukab Brash PLLC represented the developer.
At the outset, the Developer offered to compensate the adjacent property owner with a commercially reasonable license fee and to reimburse the adjacent property owner’s reasonable professional fees. However, the adjacent property owner demanded an $8,000 monthly license fee and refused to negotiate any lower in exchange for entering into an access agreement with the Developer.
Mr. Rukab argued that the adjacent property owner’s refusal to negotiate a commercially reasonable license fee was tantamount to a denial of access, and as such Court intervention under RPAPL 881 was warranted. Mr. Rukab further argued that a license fee must be calculated according to the adjacent property owner’s loss of use and enjoyment in the areas the Developer sought to access, and not based on an arbitrary “market rate” requested by the adjacent property owner.
The Court upheld Mr. Rukab’s arguments and issued a Decision granting Mr. Rukab’s client, the Developer, access to install New York City Department of Buildings’ required protections on the adjacent property in exchange for a monthly license fee less than half the rate requested by the adjacent property owner and a nominal one-time payment of professional fees.
“With the building boom and evolving safety regulations there has been an increase in RPAPL 881 actions,” said Mr. Rukab. “This decision was a significant one that will play an integral role in the future of development and expansion of RPAPL 881. The judge came to the right and fair decision in recognizing that the adjacent property owner was attempting to seek a commercially unreasonable license fee.”
New decisions such as this one will continue to expand this legal area and certain requirements will be imposed on the New York City Department of Buildings, including providing written notification to adjoining property owners when an application for approval of construction is submitted to them. Developers and contractors seeking access are likely to face an adjacent property owner who is already informed about the Project that the Developer will need access for.