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PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE.

The First Department determined petitioner was entitled to a license to enter another’s property to make repairs on petitioner’s property (which was otherwise not accessible) but the respondent property owner was entitled to a license fee:

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RPAPL 881 provides: “When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.”

“Although the determination of whether to award a license fee is discretionary, in that RPAPL 881 provides that a license shall be granted by the court in an appropriate case upon such terms as justice requires,’ the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees”… . This is because ” the respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it . . . . Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access'” … . Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 2017 NY Slip Op 02905, 1st Dept 4-13-17

 

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE)/LICENSE FEE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE)

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