RPAPL §881 Update: New Rules for Townhome Construction Access in New York

Overview

In December 2025, New York enacted a comprehensive revision to RPAPL §881, the statute governing court-ordered construction access to adjoining properties. For townhouse owners planning excavation, underpinning, façade work, or structural additions, the amendment introduces meaningful changes to how access is requested, evaluated, and granted. The updates address long-standing frustrations such as delays from unresponsive neighbors, unnecessary litigation, ambiguity around what qualifies as "necessary" access, and uncertainty about authorizing permanent structural work. The revised law provides a clearer, more predictable framework while maintaining protections for property owners.

Here's what changed and what it means for your project:

1. Silence Now Constitutes Refusal

Historically, townhouse projects were frequently delayed when a neighboring owner failed to respond to an access request. Without an explicit refusal, court intervention was often unavailable. Enter the 60-Day Rule. The revised statute establishes a defined process:

• Initial notice requesting access (served by certified mail)

• Follow-up notice if no response is received

• Deemed refusal if 60 days pass from the initial notice with no response

After 60 days, silence is legally treated as a refusal, allowing the requesting owner to seek a court-ordered license. This change prevents projects from being delayed indefinitely through inaction alone, while preserving a reasonable opportunity for neighbors to review and respond.

2. The “Commercially Reasonable” Standard

Under the prior law, owners were often required to prove that access was absolutely necessary, even where alternatives were impractical, unsafe, or disproportionately expensive. The Updated Standard:

Courts now evaluate whether the requested access is commercially reasonable, taking into account:

• Construction safety

• Engineering requirements

• Cost and feasibility

• Loss of usable interior space

• Compliance with the Building Code

The distinction between “technically possible” and “reasonably practical” now matters. Courts are empowered to consider real-world construction constraints, not just theoretical alternatives.

3. Codified Authority for Excavation and Structural Support

The revised statute explicitly confirms that courts may authorize access for permanent structural work when required by code or accepted engineering practice. This includes:

• Underpinning and new footings

• Permanent wall anchors and structural ties

• Chimney and vent extensions when new construction affects adjacent flues

This clarification resolves long-standing uncertainty around whether courts could authorize work involving permanent structural elements beneath or adjacent to neighboring properties.

4. Good-Faith Requirements for Access Requests

While the new law makes access more predictable, it also raises expectations for owners seeking it. Before pursuing court relief, owners must demonstrate professionalism and transparency. A Complete Access Request Typically Includes:

• Architectural and structural drawings

• Monitoring plans (vibration, crack, and movement monitoring)

• Evidence of commercially reasonable insurance coverage

• A defined construction timeline identifying when and how access is required

Well-prepared, good-faith requests often result in negotiated agreements and can avoid court proceedings altogether.

5. Compensation Is Required, but Structured

The revised statute confirms that neighbors are entitled to compensation for construction access. Courts may require:

• License fees reflecting fair market value for temporary use

• Reasonable expert fees, such as the cost of a consulting engineer reviewing plans

• Attorney Fees are no longer automatic. Courts may award them only when a party acts in bad faith or engages in unreasonable or obstructive conduct. This change discourages leverage-based disputes while preserving protection for legitimate concerns.

6. Consolidated Proceedings for Multi-Unit Buildings

When construction access affects a multi-family or condominium building, the revised law requires disclosure of affected occupants so that all parties may be addressed in a single proceeding.

This avoids fragmented negotiations and ensures that one court order governs access for the entire building, reducing uncertainty and mid-project objections.

Practical Implications for Townhouse Owners

Renovating a New York City townhouse will never be simple. Structural unpredictability, aging construction, and close proximity to neighbors remain inherent challenges. What the 2025 amendment to RPAPL §881 provides is clarity and predictability. It replaces open-ended delays and leverage-based negotiations with a defined legal framework that rewards preparation, documentation, and good faith. Early technical planning and experienced owner representation remain essential, but the legal path for obtaining necessary access is now clearer, more consistent, and more aligned with how townhouse projects are actually built.

Planning a townhouse renovation that may require neighbor access? Align provides owner representation and preconstruction advisory services for complex New York City townhouse projects.

Read the text of the law here: https://www.nysenate.gov/legislation/laws/RPA/881