Accessing Neighboring Property for Capital Projects: The Dos and Don'ts

Sooner or later, every board will have to ask their neighboring building for access to their property in order to do a capital project. That process rarely goes smoothly, and you need to anticipate that by starting early and getting off on the right foot.

FIRST APPROACH  Generally, you want your lawyer to initiate communication with a friendly — not demanding — letter, simply explaining, "We're going to be doing a project. It involves X, Y and Z."  You want to give sufficient detail to allow your neighbor to at least get a preliminary scope of what you're talking about and they can expect. When people send vague or deliberately ambiguous letters about the work they intend to do and the degree of access that’s required, you could be setting yourself up for trouble. It’s also important to assure your neighbor that you're going to do everything necessary to protect their property and to minimize any intrusion onto their property. If there are items that you know are going to be sore spots or hot-button topics, you may want to tread lightly on those issues and disclose but not necessarily highlight them, at least in the initial communication. It's a case-by-case situation.

It is rare that securing an access agreement is as simple as an initial letter and your neighbor saying, “Sounds good.” If negotiations go nowhere, the Real Property Actions and Proceedings Law Section 881 says that you can bring a special proceeding in court if you need to do improvements or repairs to your property that require access and get a court order compelling your neighbor to give it to you.

DUELING OVER DOLLARS  Money is often a sticking point. Some people have come to view the request for access as sort of a gold mine. They say, “Well, we can delay the repair project and hold people hostage by demanding an exorbitant license fee. Even if they take us to court and eventually get access, they’ll still have to pay us. Maybe it won't be as much as we're demanding today, but still more than they might have initially offered.” That dynamic definitely exists, which underscores the importance of starting out on the right foot by being candid with your neighbor about what you need and how long it's going to take. You want to develop a relationship of trust to avoid a shakedown situation.

DON’T LOWBALL IT  On the other hand, you need to be reasonable about the access fee, which should be commensurate with the scope of the intrusion you’re asking for. For example, if your neighbor doesn’t have a roof deck and you need to put up scaffolding on their roof to protect it from falling bricks or other debris from your project, the fee shouldn’t be that high because they’re not really losing out on an amenity or usable space. But if you need to put scaffolding, say, over your neighbor's swimming pool or a courtyard, you may be closing off an important amenity, and the fee that your neighbor is going to demand is understandably going to be higher. Also, it’s expected that the party doing the work has to pay for the engineer, architect or other professional that your neighbor will require to go over your plans to ensure that their building will be adequately protected. 

If you feel you're being jerked around or toyed with, or unreasonable demands are being made of you, going to court can be an inducement to an obstructive neighbor to get an access agreement finalized. Neither party wants to incur legal costs and take the risk of having a judge decide what the access should be, what the timeframe and the scope should be. 

Jumpstart the process. I can’t stress enough the importance of being organized and starting early with your construction professionals and your lawyer to notify the neighbor from whom you need access well in advance of the start time for your project — being candid and firm by saying, “Here's what we need. Here's when we need it." And if things get bogged down, don’t hesitate to remind your neighbor that they're going to need access from you at some point in the future. You can also try to build in reciprocal access provisions in your  agreement, which can often break an impasse.