Access License Agreement
This week we wanted to bring your attention to an interesting case which determined that additional professional and legal fees were properly chargeable to a licensor where a prior Access License Agreement, issued in accordance with Real Property Actions and Proceedings Law (“RPAPL”) Section 881 (“Access to adjoining property to make improvements or repairs”), had to be further extended and modified. The decision, in part, turned on the specific language set forth in the agreement as to the “reasonableness” of circumstances which necessitated the additional Professional Fees. The relevant facts and a link to the case are set forth below.
It is undisputed under RPAPL Section 881 that “[w]hen an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make improvements or repairs may commence a special proceeding for a license to so enter…”
In 144 Barrow Street LLC v. Board of Managers of the 130 Barrow Street Condominium, 2022 NY Slip Op 30601, decided February 22, 2022, the Petitioner sought a license to perform work on the Respondent’s adjoining property. The Petitioner and Respondent had previously executed five prior licensing agreements, which provided for a $2,000 a month licensing fee. The last agreement, on March 19, 2021, required that the Petitioner reimburse the Respondent for certain additional professional fees. The Supreme Court, New York County, granted the license to access the Respondent’s property, required the payment of a licensing fee of $2,000 a month during the duration of the license, and ordered that the Petitioner reimburse reasonable attorneys’, architects’, engineering and design fees incurred by the Respondent in connection with the license after March 19, 2021. According to the Court,
“[t]he parties do not dispute that the license sought in this petition is another amendment to the SOE [‘Support of Excavation Agreement’]. As such, the clear terms of the agreement between the parties do not prohibit respondent’s entitlement to professional fees since March 19, 2021 [citation omitted]. The Court additionally finds that respondent has not shown why the Court should deviate from the parties’ unambiguous terms and order petitioner to pay fees incurred prior to that date [citation omitted]…”
A link to the case is posted at https://www.nycourts.gov/reporter/pdfs/2022/2022_30601.pdf
This case highlights the importance of carefully drafting language in your Access License Agreements to include for the possibility of additional Professional Fees being incurred in the event that the original agreement must be modified or extended. As always, the Team here at
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