On December 5, 2025, New York Governor Kathy Hochul signed amendments to Real Property Actions & Proceedings Law (RPAPL) section 881. These amendments are pro-development and, in part, likely unconstitutional.
Prior to the amendment, RPAPL section 881 directed courts to treat applications by neighbors for access as temporary condemnations that did not permit any permanent encroachment on the neighboring property. The courts had effectively tailored provisions to promote public safety for adjacent properties without undue interference in the operation of the adjacent properties. The burdens of the proceeding were placed on the party seeking access.
For Local Law 11 and other maintenance work, the requirements for insurance, indemnification and compliance with the law were routine and becoming stabilized. New buildings, particularly larger ones, were often subject to intense negotiations and litigation, reflecting the fact that developers were damaging adjacent property owners, and those owners were trying to protect their own interests.
Hochul has attempted to shift more burdens and expenses onto adjacent property owners. Among other changes adverse to adjacent property owners, she has attempted to create a right for developers to install underpinning on adjacent property by government fiat, without providing procedural or substantive due process or compensation for the taking of property.
The use of the word “attempted” is intentional. Whether this provision will survive a serious judicial challenge is highly doubtful. The United States Supreme Court’s decision in Cedar Point Nursery v. Hassid, 594 US 139, 141 S. Ct. 2063, 210 L. Ed. 2d 369 (2021) is instructive. By a 6-3 decision, the court ruled that allowing labor unions to enter private property for organizing purposes constituted an unconstitutional taking, strongly suggesting that permitting one property owner to place a permanent structure on neighboring property would also be a taking that would not pass constitutional muster.
Moreover, Hochul removed the right of full indemnification for adjacent property owners, substituting a requirement for paying “actual” damages for “entry.” She left a provision for “fees,” which is likely to create disputes about attorney fees, resulting in additional expense and inconvenience for adjacent property owners.
Significantly, the New York City Department of Buildings (DOB) has determined that underpinning is no longer necessarily the most desirable means to protect adjacent properties from damage. NYC Building Code Section 1817.3 generally requires evaluations of adjacent buildings for suitable support methods, assessment of the adjacent buildings and subsurface conditions, evaluation reports and alternatives for underpinning. Tangent or secant piles, slurry walls and grouting must all be evaluated.
Poorly executed underpinning has damaged many buildings, particularly in Brooklyn and lower Manhattan. Because of this pattern of damage, the NYC DOB amended the Building Code on or about November 2, 2022, to tighten up the approval process for SOE drawings.
While Hochul was happy to give developers a “win,” she did not provide any meaningful protection for adjacent property owners. Too many property owners are stuck in litigation over property damage with uninsured or underinsured developers who go out of business to avoid paying for damages caused to adjacent properties.
The Governor should have required a minimum of $50,000 cash bond for statutory protections, $1 million cash bond for new buildings up to 75 feet and $5 million cash bond for new buildings over 75 feet, particularly where the developer (or its predecessor in interest) had a history of damaging other buildings. The NYC DOB should have been directed to deny building permits to developers with a history of damaging adjacent properties and failing to fully cover the damage with insurance.
The balance of the changes to RPAPL Section 881 does not appear to functionally change proceedings under RPAPL Section 881. Only time will tell. However, if a new building is planned adjacent to you, you should retain attorneys, architects and structural engineers as quickly as possible to protect your property.
This column presents a general discussion. This column does not provide legal advice. Please consult your attorney for specificlegal advice.
Carol A. Sigmond
Partner
Nossaman LLP
12 East 49th Street
22nd Floor
New York, NY 10017
