Prospective-Only Licensing under RPAPL § 881 and Judicial Power to Revive Expired Access Terms
Commentary on Franklin Carroll, LLC v. Carroll Development Plaza, LLC (2025)

Introduction

The Appellate Division, Second Department, in Franklin Carroll, LLC v. Carroll Development Plaza, LLC, 238 A.D.3d 714 (2025), confronted the increasingly common clash between urban developers and neighboring owners in densely built areas. The plaintiff (Franklin Carroll, LLC) sought a preliminary injunction and damages after its neighbor (Carroll Development Plaza, LLC) installed scaffolding and other safety measures on the plaintiff’s land without renewed permission. The key statutory tool, Real Property Actions and Proceedings Law (RPAPL) § 881, authorizes a court to grant a temporary license to enter adjoining land when an agreement cannot be achieved voluntarily. Two central issues dominated:

• Whether a court can grant an ex post license when the developer has already trespassed, and if so, does the license retroactively legalize that trespass?
• Whether a court may adopt the terms of an expired, previously negotiated agreement as “conditions of justice” under RPAPL § 881.

The Second Department affirmed the Supreme Court’s order that denied the plaintiff’s requested injunction and, in effect, granted the defendant a conditional license to remain on the property prospectively.

Summary of the Judgment

The appellate court upheld the trial court’s twin determinations:

1. License Granted. Relying on RPAPL § 881, the court authorized the developer to continue using the plaintiff’s land for “no more than 12 months,” subject to specific conditions: payment of monthly fees (mirroring a lapsed 2019 license), naming the plaintiff as an additional insured, and reimbursement for any physical damage.
2. Injunction Denied. A preliminary injunction was deemed inappropriate because (a) the plaintiff could not show a likelihood of success on its injunctive claim given the newly issued license, and (b) the balance of equities favored the defendant—removal of protections would imperil both properties and the public.
3. Trespass Liability Intact. Critically, the court clarified that the license operated prospectively; the prior trespass remained actionable and uncompensated by the license.

Analysis

1. Precedents Cited

The court leaned heavily on a triad of Second Department decisions interpreting RPAPL § 881:

• Matter of Queens College Special Projects Fund, Inc. v. Newman, 154 A.D.3d 943 (2017) – identified non-exhaustive factors (duration, necessity, public interest, safeguards) when weighing an access license.
• Matter of Voron v. Board of Managers of the Newswalk Condominium, 186 A.D.3d 833 (2020) – articulated the “relatively slight inconvenience vs. neighbor’s hardship” balancing test and reiterated that sound protective measures and financial assurances justify intrusion.
• Soundview Cinemas, Inc. v. AC I Soundview, LLC, 149 A.D.3d 1121 (2017) – emphasised that a preliminary injunction is a “drastic remedy” and underscored the importance of equitable balancing.

On the injunction side, the panel cited:

• Samaha v. Brooklyn Bridge Park Corp., 230 A.D.3d 608 (2024) – restated the classic three-part test for preliminary relief.
• Spatafore v. U.S. Bank Trust N.A., 231 A.D.3d 985 (2024) – denial of injunction where likelihood of success is undercut by statutory or judicial permissions.
• Umlas v. Britton, 222 A.D.3d 1031 (2023) and Shrage v. Con Edison Co., 216 A.D.3d 1023 (2023) – recognition that an unlicensed entry constitutes trespass even if benevolent motives exist.

These precedents provided the doctrinal scaffolding for the court’s fine-grained balancing and its refusal to retroactively excuse trespass.

2. Legal Reasoning

The court proceeded in two conceptual steps.

a. Granting the License

Applying Voron and Queens College, the defendant demonstrated:

• Necessity: The temporary protections were mandated by the NYC Building Code; alternative means (overbuild, cantilevers, remote installation) either did not exist or would substantially raise costs and risks.
• Limited Duration: 12-month cap mitigated the intrusion.
• Public & Neighbor Safety: Removing protections would expose both properties and passers-by to falling debris.
• Financial Protection: Monthly fees pegged to prior agreement, additional insured status, and repair obligation satisfied the statute’s “measures in place to ensure compensation.”

Balancing the inconvenience (temporary loss of rear-yard use, minor obstruction) against the developer’s hardship (halted construction, safety liabilities), the scale tilted toward issuing the license.

b. Refusing the Preliminary Injunction

While the plaintiff showed a plausible trespass claim for past conduct, it faltered on the injunctive element:

• Likelihood of Success: Any future exclusion right was negated by the new license; only damages remained as a viable remedy.
• Irreparable Harm: Economic loss could be measured in money and safety concerns were, ironically, exacerbated by the plaintiff’s request to dismantle protections.
• Balance of Equities: Court found the defendant’s and public’s safety interests outweighed the plaintiff’s temporary loss of a portion of its yard.

c. Prospective Nature of the License

A distinctive feature of the decision is the explicit pronouncement that the court did not grant the license nunc pro tunc. Therefore, unauthorized entry that preceded the order remains actionable. This preserves two co-existing remedies: (i) damages for historic trespass; (ii) court-supervised access going forward.

d. Adoption of the 2019 Agreement’s Terms

Invoking RPAPL § 881’s phrase “upon such terms as justice requires,” the court recycled the parties’ 2019 fee schedule and insurance requirements. By treating those negotiated figures as a proxy for fair compensation, the court:

• Respected the parties’ own valuation of inconvenience, promoting commercial certainty.
• Avoided protracted hearings over the appropriate fee, thus conserving judicial resources.

3. Impact on Future Cases and Development Law

The decision clarifies—and arguably expands—judicial discretion in two notable ways:

1. Prospective-Only Licensing Doctrine. Developers who enter prematurely can still obtain an RPAPL § 881 license, but cannot erase liability for past trespass. This encourages voluntary agreements while still allowing construction projects to proceed once safeguards and compensation are formalized.
2. Revival of Expired Terms as “Reasonable Conditions.” Courts may transplant provisions from a lapsed agreement when they reflect the parties’ prior meeting of the minds. This offers a blueprint for judges faced with stalled negotiations: adopt the last mutually agreed memorandum as a fair baseline, adjusting only if circumstances materially changed.

Beyond New York, jurisdictions with analogous access statutes (e.g., California Civil Code § 833, § 834; Illinois Access to Adjoining Property Act) may look to Franklin Carroll for guidance on balancing wrongful entry with ongoing development needs.

Complex Concepts Simplified

• RPAPL § 881: A New York statute allowing a property owner to petition the court for temporary access to a neighbor’s land when necessary for improvements and the neighbor refuses consent.
• License vs. Easement: A license is temporary and revocable (unless ordered by a court under § 881), whereas an easement is a lasting property interest.
• Preliminary Injunction: A provisional court order preserving the status quo until trial. The moving party must show likelihood of success, irreparable harm, and favorable equities.
• Nunc pro tunc: Latin for “now for then”—a retroactive judicial order that treats an act as if it occurred at an earlier date. The court expressly declined to employ this device.
• Balancing of Equities: A discretionary weighing of hardship to each party and the public interest.

Conclusion

Franklin Carroll, LLC v. Carroll Development Plaza, LLC crystallizes two practical rules for New York real-estate litigants:

1. Courts may grant an RPAPL § 881 license after an unconsented entry, but the relief is prospective only; aggrieved owners retain causes of action for past trespass.
2. In setting “just terms,” courts can—and likely will—look to any expired or partially performed license agreement as persuasive evidence of fair compensation and acceptable protections.

The decision underscores the judiciary’s twin aims of preventing construction impasses while vindicating property rights. For practitioners, the lesson is clear: developers should secure express consent before entry or risk trespass liability; adjoining owners should prepare to articulate specific objections and alternative safeguards, lest a court impose access on familiar—and enforceable—terms.