Governor Hochul Signs Major Overhaul of RPAPL §881 Into Law
On December 5, 2025, Governor Kathy Hochul signed Senate Bill S3799, enacting the first update to New York’s adjoining-property access law, RPAPL §881, in over half a century. While the new law is not quite as far-reaching as it was in earlier drafts, and in many instances is a codification of already-existing case law, it does offer a number of amendments which will be of interest to developers and property owners here in New York.
Peraino Malinowski LLP has handled hundreds of RPAPL §881 proceedings across the New York City area. The firm’s litigation and real-estate teams closely monitored this bill from introduction through final passage. Below is a “cheat-sheet” for some key parts of the new law:
1. Expanded Accesses; Underpinning Allowed. Developers have long been frustrated by the simple fact that underpinning or other methods of “permanent” support of excavation could not be awarded by the courts. As a result, desperate developers could find themselves paying the price named by opportunistic neighbors for underpinning, or re-designing support of excavation systems altogether. The new RPAPL §881 suggests this era may be over, as it expressly allows the developer to seek permission to install “any necessary foundation or building supports, including…underpinning”. It remains to be seen whether this provision will survive constitutional challenges.
2. Silence is Refusal? Seasoned developers know that one of the primary defenses a neighbor mounts is that they never “refused” access, a necessary pre-condition to granting a license. In the final legislation, “refusal” is expressly expanded to include instances where more than one written notice has been served, by certified mail, on the adjoining owner and has not been responded to within sixty (60) days. From a practical standpoint, this likely means that silence from the adjoining owner would constitute refusal. It also provides licensees with a clear timetable for when they are able to begin a §881 petition, which makes it imperative that the first written notice requesting access be sent as soon as possible.
3. Professional Fees. Earlier drafts of the legislation suggested that attorneys’ fees were only awardable to the neighbor in the event of a developer’s “bad faith” in negotiating. Importantly, this drafting did not survive into the final law, which provides only that a court may order a developer to pay the neighbor’s fees, without expressly referencing attorneys’ fees or a standard for fee shifting.
4. Adjoining Owner Must Disclose Lessees. The adjoining owner is now required to identify any tenants or lessees requested by the developer, who can be added to the proceeding at the developer’s election.
5. Good Faith Approximation of Dates and Times of Entry. The prior version of 881 required developers to provide “the date or dates on which entry is sought.” The uncertainties of construction in New York City made such a provision nearly impossible to comply with. The new version of the law modifies the standard, and only requires a “good faith projection” of the foregoing.
6. MTA Carve-Out. Initial drafts of the legislation did not include any reference to “state entities,” defined as the Metropolitan Transportation Authority or its affiliates. However, the addition of state entities in future revisions and explicit comment from the legislature made its intent clear: Courts may not grant an §881 license if the adjoining property is owned, leased, or occupied by the MTA. This provides the MTA immunity from §881 petitions, making it harder for developers to obtain a license or necessary access from such adjoining owners.
Bottom Line
The amended RPAPL §881 provides more clarity for New York City developers, but leaves much up in the air. It is unclear, for example, whether one of the most significant amendments in the law – allowing developers to ask for underpinning – will survive constitutional challenges.
For developers, one takeaway is clear: the new law rewards early, proactive action. Clients with upcoming projects should immediately retain counsel and serve the first certified-mail access notice to start the 60-day clock running. Peraino Malinowski LLP, having successfully handled hundreds of §881 proceedings, stands ready to guide you through this updated process.
If you have any questions, please contact Simon Malinowski at (646) 360-4328 or smalinowski@pmlaw.nyc, or David M. Peraino at (646) 454-0313 or dperaino@pmlaw.nyc.
