Boards and managers of condominiums, cooperatives, and homeowners associations (HOAs) in New York are increasingly confronted with requests from neighboring owners and developers for temporary access to building exteriors, roofs, yards, setbacks, and other common elements to perform construction, repairs, or protective work.. When access is necessary and consent is withheld, the requesting party may seek a court-ordered license under Real Property Actions and Proceedings Law (RPAPL) § 881. The decision in Matter of Bergen St Equity LLC v 259 Wyckoff Assoc. LLC, 2026 N.Y. Misc. LEXIS 2552 (2026) is a useful reminder that, in RPAPL § 881 practice, reimbursement of the adjoining owner’s reasonable professional fees is not a “nice-to-have”-it is frequently treated as a central term of a fair license.

Key Points of the Supreme Court, Kings County Decision

The Court in Matter of Bergen St Equity LLC v 259 Wyckoff Assoc. LLC, 2026 N.Y. Misc. LEXIS 2552 (2026) addressed the issue of professional fees, including attorneys’ fees and expert fees, in the context of a proceeding under Real Property Actions and Proceedings Law (RPAPL) § 881. The court ordered the Petitioner to pay the Respondent’s professional fees as a condition for encroaching on the property. This decision underscores the equitable principles of RPAPL § 881, ensuring that property owners are not unfairly burdened by costs arising from access granted to developers.

The recent amendment to RPAPL § 881 provides that the Court is authorized to “obligate the licensee to reimburse the adjoining owner for reasonable fees incurred in connection with the review of relevant documents for the installation, maintenance, inspection, repair, replacement or removal of devices, structures, materials or equipment on the adjoining property”.

1. Award of Professional Fees:
   The court determined that the professional fees incurred by the Respondent, totaling $67,750.00, were reasonable and should be paid by the Petitioner as a condition for encroaching on the Respondent’s property. These fees included attorneys’ fees and architect’s fees, with hourly rates ranging from $550 to $800 for attorneys and $475 for the architect. The court found these rates to be within the prevailing market rates for similar services in New York and noted that the Petitioner failed to provide evidence to the contrary.
   
2. Equitable Principles Under RPAPL § 881:
   The court emphasized that RPAPL § 881 grants broad discretion to award professional fees to respondents compelled to grant access to their property. The underlying equitable principle is that a property owner who does not seek or benefit from the intrusion should not bear the associated costs. The fees awarded were deemed compensable as they were incurred to protect the Respondent’s property and ensure that access was properly conditioned.
   
3. Petitioner’s Allegations of Bad Faith:
   The Petitioner argued that the Respondent’s attorneys acted in bad faith by unnecessarily prolonging the dispute and inflating fees. However, the court found no evidence to support these claims. Instead, it concluded that the fees reflected legitimate efforts to protect the Respondent’s property interests.
   

Here’s the decision: