Removal of Encroaching Structures

Removal of a Structure Encroaching on Adjacent Property

RPAPL § 871. Action for the Removal of Encroaching Structures:

  1. An action may be maintained by the owner of any legal state in land for an injunction directing the removal of a structure encroaching on such land.

In Second on Second Café, Inc. v. Hing Sing Trading Inc., 66 A.D.3d 255 (1st Dep’t 2009), the standard for obtaining an order granting a mandatory preliminary injunction effecting real property is reviewed and discussed in detail. The rights and obligations of tenant and property owner concerning the removal of a portion of a restaurant exhaust system that encroached on an adjacent property was the basis for the dispute presented to the Court. The restaurant tenant, benefitting from the encroaching exhaust system, had paid $500,000 for renovations that had included the construction of the portion of the exhaust system that was attached to the impacted property. The license for the encroachment was revoked within four years of the completion of the renovation because the owner of the impacted property was pursuing an improvement that required demolition of the existing building so that a new structure could be constructed. The demolition could not proceed until the encroachment was removed. The detailed analysis by the Court of the rights of landlords and tenants makes it clear that the assertion of property rights by tenants is limited to the demised premises in which the tenants’ space is located as defined by the lease. Absent a cognizable property right in the impacted property, the tenant’s interest therein is limited to that of a license, i.e. temporary and revocable by the property owner at will.

Second on Second Café also makes it clear that any costs associated with continuing the operation of tenant’s restaurant after the removal of the encroachment are costs that must be borne by the tenant. In that proceeding, the owner of the restaurant was required to incur the expense of replacing the exhaust system that had been attached to the impacted, adjoining building with a system constructed within the confines of the building which the restaurant was located. RPAPL 871 expressly authorizes an action by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land.

A license authorizes performing a particular act or series of acts upon another’s land without creating an estate therein or giving an interest in the land itself, and is revocable at the option of the landowner. Mammy’s Inc. and Pappy’s Inc. v. All Continent Corp. et al., 106 N.Y.S.2d 635, 638 (Sup. Ct., N.Y County, 1951). The Court of Appeals in Crosdale v. Lanigan, 129 N.Y. 604, 610 (N.Y. 1892), summarized the rule that revocable licenses that are not subsequently incorporated into a deed or lease are revocable as of right:

But the courts in this state have upheld with great steadiness the general rule that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this, although the intention was to confer a continuing right and money had been expended by the licensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the rule required by public policy. It prevents the burdening of lands with restrictions founded upon oral agreements, easily misunderstood. It gives security and certainty to titles, which are most important to be preserved against defects and qualifications not founded upon solemn instruments. The jurisdiction of courts to enforce oral contracts for the sale of land, is clearly defined and well understood, and is indisputable; but to change what commenced in a license into an irrevocable right, on the ground of equitable estoppel, is another and quite different matter. It is far better, we think, that the law requiring interests in land to be evidenced by deed, should be observed…

It is equally clear that a licensee’s belief that the license will be continuously available is irrelevant as to whether the license is revocable. Kaiser v. Cinberg, 130 A.D.254, 256 (2nd Dep’t 1909); Mammy’s Inc., 106 N.Y.S.2d at 638-39.

From his office in midtown Manhattan, the law firm of Gary J. Wachtel, Esq. represents real property owners that are in need of injunctive relief involving real estate encroachment issues across the entire New York City area. Whether you are in Manhattan, Brooklyn, Bronx, Queens, Staten Island or Nassau and Suffolk Counties you may contact his law offices now to assist you with these matters, or call him today to arrange for your initial appointment, and let his experience be your advantage – 212-371-6500.

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