Kings County Judge Broadens RPAPL § 881
On June 18, 2019, Justice Karen Rothenberg of the Supreme Court of New York for the County of Kings addressed an issue of first impression in the case Voron v. Board of Mgrs. of the Newswalk Condominium. The issue in Voron concerned whether tenants could enter adjoining condominium units to perform necessary renovations under RPAPL § 881 when no other alternatives to perform the renovations existed. Due to the language of RPAPL § 881—which states the statute applies to any adjoining real property—Justice Rothenberg granted a temporary license to the tenants of a condominium which permitted their entry to an adjoining vacant unit to perform necessary plumbing work. As a result of this decision, the scope of RPAPL § 881 has been significantly broadened within Kings County to apply to condominiums and Justice Rothenberg’s reasoning likely could be applied to other forms of adjoining property, such as co-ops and apartments.
To justify her decision, Justice Rothenberg identified a series of factors prior to granting a temporary license to perform necessary renovations, one being whether the renovations would be an inconvenience to the tenants of the adjoining condominium. Given that the adjoining condominium was unoccupied, no burden was placed upon any other tenants throughout the course of the renovation. However, licenses pursuant to RPAPL § 881 have been issued despite renovations being intrusive and burdensome. In N. 7-8 Inv’rs, LLC v. Newgarden, a license was granted pursuant to RPAPL § 881 despite the Defendant proposing a renovation that included the construction of a cantilevered balcony that ventured six feet into the neighboring property. Unlike the adjoining condominium in Voron, the adjoining property in Newgarden was occupied. Nevertheless, the judge granted a temporary license to the Defendant which allowed them to enter the adjoining property and construct the cantilevered balcony. Thus, even if proposed renovations are intrusive or inconvenient, RPAPL § 881 may still allow a person to receive a temporary license from a judge to enter an adjoining property in order to perform renovations.
The decision in Newgarden suggests that, even if renovations are intrusive, a judge is not barred from granting a temporary license under RPAPL § 881. Although Justice Rothenberg highlighted vacancy in the adjoining unit as a core factor that led to her decision in Voron, an unoccupied condominium unit is not at all necessary for a judge to issue a temporary license for renovations. Therefore, a combination of the decisions in Voron and Newgarden propose that a person can be issued a temporary license to enter an adjoining condominium unit for renovations even if the adjoining unit is occupied. Given that Justice Rothenberg’s decision pinpointed the language of RPAPL § 881 to include all real property, it is likely that her reasoning can be applied to other forms of adjoining real property, including co-ops and apartments. Time will tell if the widened grasp of RPAPL § 881 will encompass other types of real property. As for now, lawsuits concerning adjoining condominium units may see an uptick after the decision in Voron.
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