Lawyers help Bronx developer gain access to neighbouring property to install NYDOB protections

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Jack Rukab
Jack Rukab

A New York City real estate law firm says it successfully saved a Bronx developer from paying an adjacent property owner a license fee of more than $8,000 per month and over $100,000 in professional fee reimbursement. The firm also helped the Bronx developer obtain access to the adjacent property in order to install New York City Department of Buildings (NYCDOB) required protections in connection with the its 12-story mixed use affordable housing development.

Jack Rukab, partner at Rukab Brash PLLC represented the developer in filing a claim under what it says has been once described as a “little used law”, the Real Property Actions and Proceedings Law 881 a/k/a RPAPL 881. (Ed. note – link describing the law is from another law firm.)

This law is now increasingly being called upon to decide neighboring access disputes in New York City – and is considered required knowledge for landowners and developers in the Big Apple. The current economic and political climate of the city has dramatically increased the applicability of RPAPL 881 making each new court decision significant as it sets a new standard to expand this evolving legal area.

The lawyer says in a statement that Judge Donald A. Miles of the Supreme Court, Bronx County, issued a January decision granting the developer the access being sought.

At the outset, the developer offered to compensate the adjacent property owner with a commercially reasonable license fee and to reimburse the adjacent property owner’s reasonable professional fees. However, the adjacent property owner demanded an $8,000 monthly license fee and refused to negotiate any lower in exchange for entering into an access agreement with the developer.

Rukab argued that the adjacent property owner’s refusal to negotiate a commercially reasonable license fee was tantamount to a denial of access, and as such court intervention under RPAPL 881 was warranted. The lawyer further argued that a license fee must be calculated according to the adjacent property owner’s loss of use and enjoyment in the areas the developer sought to access, and not based on an arbitrary “market rate” requested by the adjacent property owner.

The court upheld Rukab’s arguments and issued a decision granting the developer client access access to install NYCDOB’s required protections on the adjacent property in exchange for a monthly license fee less than half the rate requested by the adjacent property owner and a nominal one-time payment of professional fees.

“With the building boom and evolving safety regulations there has been an increase in RPAPL 881 actions,” said Rukab. “This decision was a significant one that will play an integral role in the future of development and expansion of RPAPL 881. The judge came to the right and fair decision in recognizing that the adjacent property owner was attempting to seek a commercially unreasonable license fee.”

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