October 24, 2018

Perhaps with Tom Sawyer’s Huckleberry Finn in mind, the Fourth Department Appellate Division granted Petitioner’s motion to obtain access to Respondent’s property for purposes of painting a wood fence in Stuck v. Hickmott, 2018 WL 796320 (2018).

In Section 881 of the Real Property Actions and Proceedings Law (RPAPL), an owner seeking to make improvements or repairs to real property may seek to obtain a license to enter an adjoining property when those improvements or repairs cannot be made without such entry and permission to enter has been refused.

In this case, the lower court had granted a limited license for purposes of painting the fence on even numbered years on one of two pre-designated dates with at least 2 weeks notice between the hours of 9:00am and 12:00pm.

Given that the inconvenience to respondent of such infrequent and brief entries to facilitate an unexceptional task is relatively slight compared to petitioner’s hardship if the license is refused i.e. an ill-maintained fence subject to deterioration, the Appellate Division concluded that the lower court’s decision was proper.

The court further held that despite the petitioner’s decision to construct the fence on the property line, thereby creating the problem, petitioner was entitled to relief because RPAPL Section 881 contemplates that owners may build improvements that require access from a neighbor’s property in order to complete repairs.

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