Courts hearing RPAPL 881 attempt to apply a “adequacy standard to compensate for the applicant`s potential harshness if the application is not granted against the inconvenience caused by the adjacent owner, if granted.”  However, the New York courts generally depart from this factual approach to support and other ongoing interventions. As a general rule, New York courts do not allow permanent intervention in neighbouring properties by RPAPL 881, and if they did, these licences were systematically overturned when they were heard on appeal. The Court held a hearing to determine access rights in support of RPAPL 881. The court heard testimony from Doug James, COO of CUCS, Bruno Frustaci, COO of Bruno Frustaci Contracting, contracting for CUCS and Aymes. Frustaci testified that there was no reasonable alternative to support it. It is important that negotiations on access agreements generally remain hidden from the bank. Royalties are often paid directly by the borrower and do not appear on construction budgets. The fees required to access nearby real estate reduce the cash available to pay modification orders and cost overruns and can significantly affect the developer`s ability to serve a loan. And because parties on both sides tend to be hesitant to discuss the negotiations they have had, many lenders and developers who are new to the New York market are not aware of the risk that difficult neighbors can create. The court found that CUCS had demonstrated the absence of reasonable and practical alternatives, the need for support, and the specific plans and procedures presented and approved by the Nyc Department of Buildings. The court also stated that it did not read “the case law to completely exclude a permanent intervention licence” because RPAPL 881 allowed it to grant licences “as required by the courts.” During the reconciliation of the competent judicial authorities, the court found that “the rules of the DOB… If they are read together, clearly foreshadow a court proceeding under RPAPL 881 to obtain a support licence. Moreover, in the Tribunal`s view, “it would never have been possible to substantiate it, it would have been unnecessary for [previous] decisions to discuss how the petitioners could not bear their burden” with respect to the licences that supported them. The Court compared Ayme`s lack of base for his objection to the support of his one-storey building to the more compelling reasons for CUCS`s support, including the lack of viable alternatives to support it, the loss of social service spaces if support is not eligible, testimony from both hearings demonstrating the need to support it, and affordable housing that the homeless shelter system could gain from the project.
The Court held, at the end of a hearing, that CUCS must demonstrate that access to the performance of the support was both fair and appropriate. New York lenders and borrowers need to be careful when it comes to a requirement that can add considerable time and cost to development projects. The New York City Department of Building states in SECTION BC 3309 that the unit carrying out construction or demolition work protects adjacent buildings. However, in order to ensure protection, whether it is protection or roof protection, written permission to access neighbouring land must be obtained from the owners of these lands. Many homeowners require a payment to give the developer the necessary access. Of course, financial compensation may be justified if a neighbouring land is negatively affected by a construction project, but most of the time, the owners consider the “access agreement” or “fee” as a chance to obtain a high payment or even a block construction.