Can A Condominium Unit Owner Obtain a License For Access to Temporarily Enter into the Premises of Another Unit To Effectuate Repairs To His/Her Own Unit?

In the Matter of Marina Voron v. Board of Managers of the Newswalk Condominium et al., decided on August 26, 2020, the Appellate Division, Second Judicial Department responds in the affirmative. It does so by applying Real Property Actions and Proceedings Law Section 881 to Condominiums.

Ms. Voron, a condominium unit owner (petitioner), who sought temporary access to her subfloor from the ceiling of the unit below her, requested of her neighbor the right of entry into its unit (respondent’s unit). When the respondent refused, petitioner brought on a proceeding pursuant to RPAPL Section 881 requesting a license for temporary access to enter respondent’s premises to gain access to her subfloor through the respondent’s ceiling.

The Second Department found that RPAPL §881, which allows the owner of real property to petition for a license to enter the “premises” of an adjoining owner when such entry is necessary for making improvements or repairs to the petitioner’s property and the adjoining owner has refused such access, can be applied to condominiums. Under RPAPL §339-g, the Court stated, petitioner and respondent’s condominium units constituted “real property” within the meaning of RPAPL §881.

Some of the factors that the Court may consider in determining whether to allow access in those situations are” the duration of the access, the protections to the adjoining property that are needed, the lack of an alternative means to perform the work… and the measures in place to ensure financial compensation of the adjoining owner for any damage or inconvenience resulting from the intrusion.”

Based upon consideration of these factors, the Court allowed the petitioner access to the respondent’s unit for a period of ten (10) consecutive days, provided that the petitioner return the unit to its original condition and that respondent be paid a license fee by the petitioner of $100.00 per day. In addition, petitioner was required to provide insurance naming the respondent as an additional insured and to indemnify the respondent for any loss.

For attorneys who represent Condominium Boards that may be asked by a unit owner to intervene on their behalf to secure the permission from an adjoining unit owner who refuses a request for access to their unit by a neighbor, this statutory remedy may offer the Board an opportunity to remove themselves from the conflict between neighbors. Alternatively, for those attorneys who represent New York condominium owners who may experience a problem in their unit which requires access to another unit in order to effectuate repairs, this case may be a good legal construct to assist in resolving an impasse between neighbors.