When Construction Makes Headlines, It’s Already Too Late

When Construction Makes Headlines, It's Already Too Late

What Every Owner Should Know About Access Agreements and Risk Management

Construction failures rarely begin on the day they become visible.

By the time debris falls, a neighboring property is damaged, or a project becomes tomorrow's headline, the decisions that shaped the outcome have often been made weeks, or even months earlier. Planning, sequencing, temporary protections, documentation, monitoring, and contractual risk allocation all occur long before construction reaches the public eye.

The public sees the event, Owners inherit the consequences.

Recent construction headlines throughout New York City serve as a timely reminder that risk management does not begin when construction starts—it begins long before the first scaffold is erected, the first piece of equipment is mobilized, or the first contractor steps onto the site.

One of the most important and frequently underestimated risk management tools available to an owner is the Access Agreement. While many view it simply as a document granting permission to enter an adjoining property, sophisticated owners recognize it as something much more: a strategic roadmap that allocates responsibility, establishes expectations, defines protective measures, and creates accountability before construction begins.

At Ponte Project Management, we often say that the most effective risk management occurs before construction ever starts. Attorneys and Owner's Representatives approach that responsibility from different perspectives, but with the same objective: protecting ownership.

Legal counsel negotiates and protects the owner's contractual rights.

Ponte Project Management translates those protections into field operations through planning, sequencing, temporary protection measures, monitoring programs, documentation, and day-to-day oversight.

One protects the agreement, the other helps ensure it works.

For this month's issue, we wanted to explore the intersection of construction law and project management. We invited a respected New York construction attorney to discuss why Access Agreements deserve far more attention than they typically receive, where disputes most often arise, and how thoughtful planning before construction begins can significantly reduce risk throughout the life of a project.

Throughout the discussion, we've also included Ponte's Owner's Perspective to demonstrate how legal protections are translated into practical project execution.

A Conversation Between Project Management and Construction Counsel

Question 1

Owners often think an Access Agreement is simply permission to enter a neighboring property. What is it really?

Ponte Conversation

"We hear this all the time. An owner tells us, 'We just need the neighbor to sign so we can get started.' That's usually when we explain that this document is about much more than gaining access. From your perspective, what do owners most often misunderstand about the true purpose of an Access Agreement?"

Construction Counsel

An Access Agreement is not merely an administrative hurdle an owner must clear before construction can begin.  Access Agreements are fundamentally, about establishing risk allocation, the legal framework governing what activities may occur on the project and neighboring properties, who bears responsibility if something goes wrong, how damage will be documented and addressed, what insurance and indemnification obligations apply, and what rights and remedies exist if and when the work negatively impacts the adjoining owner. In many respects, it is as much about protecting the project as it is about protecting the neighbor.

From an owner's perspective, the value of an Access Agreement is not in obtaining a signature.  The inherent value of an access agreement lies in creating certainty and establishing clear parameters for what will occur when the unexpected happens. The agreement provides a roadmap for managing the legal and practical realities of working on or adjacent to someone else's property, allowing the project to proceed with a significantly reduced risk of interruption. That's why we encourage owners to view the Access Agreement not as a formality, but as a critical project risk management and project administration tool that can save substantial time and expense over the life of the project – not to mention helping the parties avoid costly and uncertain litigation.

Question 2

Why have Access Agreements become so much more important over the last decade?

Ponte Conversation

"Projects seem more complicated today than ever before. Sites are tighter, neighboring buildings are more sensitive, construction methods have evolved, and owners face increasing scrutiny. We've certainly seen Access Agreements become much more comprehensive over the years. What's driving that change from the legal side?"

Construction Counsel

The evolution of Access Agreements really reflects the evolution of construction itself and, in New York City (particularly since the advent of Local Law 11), greater sophistication among property owners with respect to access issues. In addition, for projects located in New York State, the main statute governing construction access (Real Property and Proceedings Law Section 881) has been amended to provide greater rights to project neighbors and individual unit owners whose apartments are impacted by neighboring construction.

Today's projects are more complex, are often built in denser urban environments and involve greater interaction with neighboring properties than ever before. As those risks and construction realities have evolved, the legal documents governing access have had to evolve as well. Owners and their counsel recognize that a simple license to enter a neighboring property is no longer sufficient. An Access Agreement now serves as a comprehensive risk management tool, addressing not only the scope of access, but also issues such as insurance requirements, indemnification, damage prevention and restoration, surveying and monitoring protocols, scheduling restrictions, dispute resolution procedures, project working hours, design negotiation and the allocation of responsibility if unforeseen conditions arise.

Another significant driver is the increasing sophistication of neighboring property owners. Adjacent owners are more aware of their rights, more likely to retain counsel, and, understandably, expect greater protections before allowing construction activities that could affect their property or operations. At the same time, project lenders, insurers, and design professionals also expect risks to be clearly identified and contractually allocated before work begins. We've also seen courts place greater emphasis on the specific language of these agreements when disputes arise. That has reinforced the importance of anticipating potential issues and addressing them expressly, rather than relying on general legal principles after a problem develops.

Question 3

What are the biggest risks owners unknowingly assume when an Access Agreement isn't thoughtfully negotiated?

Ponte Conversation

"As Owner's Representatives, we're usually thinking about sequencing, protection, documentation, and keeping projects moving. But we also know those operational decisions can have legal consequences. Where do you most often see owners unintentionally exposing themselves to risk?"

Construction Counsel

Many of the risks owners face stem not from major legal disputes but from routine project decisions made without recognizing their legal implications. Efforts to maintain the schedules or adapt to field conditions, can unintentionally create uncertainty about responsibility if issues arise later. A common example is allowing access or construction activities to extend beyond what the access agreement authorizes. As projects evolve, contractors naturally adjust their schedules, means and methods, but changes in duration, location, equipment, or scope may jeopardize the contractual protections the agreement was intended to provide. We advise our clients and attempt whenever possible to include limited automatic extensions to access agreement expiration dates.

Documentation is equally critical. Pre-construction surveys, photographs, monitoring data, inspection records, and written communications may seem administrative during construction, but they often become the strongest evidence if a neighboring owner later alleges damage or disruption. Without contemporaneous records, even defensible claims can become more difficult and costly to resolve. Owners also often underestimate the importance of coordinating compliance across the project team. Requirements such as notice obligations, work-hour restrictions, vibration thresholds, insurance, and restoration procedures are effective only if they are communicated to the contractor, consultants, and field personnel responsible for implementing them. An Access Agreement shouldn't live exclusively in a law office’s matter file, but must be actively integrated into project operations. Lastly, signing an access agreement is not the end of the process, it is the beginning. Effective risk management requires ongoing compliance, communication, and oversight throughout the period of access.

Question 4

From your experience, what provisions deserve far more attention than they typically receive?

Ponte Conversation

"Every project is different, but there are certain topics we find ourselves discussing on almost every job—pre-construction surveys, monitoring, restoration obligations, temporary protections, insurance, work hours, and logistics. Which provisions do you find owners are most likely to underestimate?"

Construction Counsel

(Attorney Response)

In our experience one of the major access agreement provisions that owners tend to underestimate or neglect to perform is the pre-construction survey.  This is a critical component of the construction access process because the pre-construction survey establishes a baseline by which future damage caused by protections or construction will be determined and established.  On a similar note, we include post-construction surveys in our access agreements.  Performing and documenting post-construction conditions at neighboring properties upon project or access period completion is crucial, since the post-construction survey contemporaneously captures any visible damage potentially caused by the owner’s project. Timely and proper performance of the pre- and post-construction surveys can save owners quite a bit of inconvenience and protect them from potential liability down the road.

We also see many projects where owners fail to implement proper monitoring programs, including vibration monitors, optical monitors to measure structure movement and, in some cases, acoustical monitors.  This can result in disastrous consequences for the owner, since, in addition to generally being legally required, proper monitoring programs are critical to preventing, detecting and minimizing negative impacts on adjacent structures during the course of the project.  Proper monitoring is vital to ensuring potential risks are identified and mitigated as quickly as possible.

Finally, owners must ensure that both their general contractor or construction manager, as well as all project subcontractors, are properly insured in accordance with the requirements of the access agreement - and that each policy does not contain exclusions or endorsements that make the policies unsuitable for the given project.  Having proper insurance is a must in connection with any construction access arrangement.

Question 5

How early should legal counsel become involved?

Ponte Conversation

"Sometimes owners don't involve counsel until construction is about to begin. We've found that many of the most important decisions have already been made by then. In your view, when should these conversations really start?"

Construction Counsel

Ideally, counsel should be involved as soon as the owner knows it will require access to an adjacent property, usually during the design phase of the Project.  Attorney involvement in the drafting and negotiation of access agreements should begin, not after the parties have agreed on or even discussed the material terms. By that point, its often harder to address issues that could have been resolved through thoughtful planning. Early involvement allows counsel to work with the project team to identify what access is actually needed, evaluate potential risks, and develop a strategy that aligns with the project’s schedule and construction plan. Equally important, involving counsel early can streamline the negotiations, where counsel can efficiently identify the project’s needs and potential concerns from the outset before they become obstacles that ultimately delay the project or increase project costs. In other words, when it comes to engaging counsel, we find that an ounce of prevention is often worth a pound of cure.

Question 6

How do you see the relationship between construction counsel and an Owner's Representative?

Ponte Conversation

"One thing we've learned over the years is that attorneys can't negotiate protections they don't know they need. Many of the technical issues don't become apparent until we're coordinating with architects, engineers, contractors, and neighboring property owners. How do you see those two disciplines working together to better protect an owner?"

Construction Counsel

The most effective projects are those where construction counsel and the owner's representative function as strategic and harmonized partners rather than operating in separate lanes. Careful collaboration between the two is key to ensuring the most successful project outcome possible.

The owner's representative brings operational and project management expertise, while counsel focuses on identifying, allocating, and mitigating legal risk. That collaboration is essential, as the owner's representative understands how access will function in practice, and counsel ensures the agreement accurately captures those operational realities, allocates responsibility appropriately, and preserves flexibility as the project evolves. When legal strategy and project execution are aligned, disputes are far less likely to arise.

Question 7

If you were representing the neighboring property owner instead of the developer, would you approach the agreement differently?

Ponte Conversation

"One of the things we appreciate about Access Agreements is that they require everyone to look at the project from both sides of the property line. Every neighboring owner has legitimate concerns. Does looking at an agreement through both lenses ultimately produce a stronger document?"

Construction Counsel

Absolutely. Looking at an access agreement from the other side of the coin is essential. In evaluating the flipside, it is imperative to understand the perspective shift from facilitating the project to protecting the neighboring owner's property, operations, safety and long-term interests.

The provisions concerning continuous evaluation of project progress and access requirements in tandem with the project goals are focused on the counterforces of limiting the scope and duration of access, clearly defining permitted activities, preserving the owner’s ability to operate without unreasonable interference, and ensuring appropriate protections for damage, restoration, insurance, and indemnity. When representing impacted properties, the goal should not be to impede construction, but to create a balanced framework where the developer has the access needed to complete the work and the neighboring owner has confidence that its property and rights are adequately protected.

Our approach to negotiating access agreements is to make sure we understand the needs and concerns of all parties involved.  Taking this approach often allows the parties to overcome what can sometimes feel like insurmountable obstacles to finalizing an effective access agreement.

Question 8

Can you share an example where what appeared to be a minor clause ultimately became one of the most important provisions in the agreement?

Ponte Conversation

"We've all had those moments where something that seemed insignificant during preconstruction suddenly became a major issue once work was underway. Without naming names, is there a situation that really illustrates why the details matter?"

Construction Counsel

(Attorney Response)

We recently encountered a situation where a client was required to construct its project according to agreed upon plans that were approved by the neighboring property, its engineers and the Department of Buildings (“DOB”), which was required under the access agreement.  Unfortunately, the client changed its design plans mid-construction without obtaining the neighbor’s consent (and before submitting revised drawings to DOB for approval.  While DOB ultimately approved the revised plans and construction, it did not absolve the owner of potential liability for breaching the access agreement.  It was an extremely costly mistake and will likely lead to litigation.  Again, it is critical that owners are aware of each of their obligations under the access agreement.

Question 9

Which supporting documents or technical exhibits do you like to see accompany an Access Agreement?

Ponte Conversation

"From our perspective, documents like existing condition surveys, photographs, monitoring plans, logistics plans, engineering details, and restoration protocols often become just as important as the agreement itself. What supporting documentation do you consider essential, and why?"

Construction Counsel

An effective access agreement is supported by exhibits that eliminate ambiguity. At a minimum, a detailed site safety plan should be included as an exhibit which identifies the licensed area, access routes, any project-specific safety or security protocols which must be implemented and plans depicting protections and monitoring equipment that will be utilized during construction.  In addition, the access agreement itself should include a relatively detailed description of the authorized work.  Every access agreement should include (either in the agreement itself or as an exhibit) a schedule for the period where access will be needed. 

It is absolutely essential that the access agreement contain an exhibit (or provisions that detail) all insurance requirements in connection with the access being granted. Pre and post construction surveys, including photographs, videos should be included as exhibits, at the appropriate juncture and as-built drawings are also invaluable exhibits that can be appended to the access agreement as an exhibit when the project is complete. Well-prepared exhibits provide the operational detail that make the legal obligations in the agreement clear and enforceable.

Question 10

Where do disputes most commonly arise once construction begins?

Ponte Conversation

"From our side, disputes rarely seem to begin with one catastrophic event. They're usually a series of smaller issues that build over time—miscommunication, undocumented conditions, differing expectations, or changing site conditions. Is that consistent with what you've seen?"

Construction Counsel

Once construction begins, disputes most often arise at the intersection of the parties' expectations and the realities of the work. Common flashpoints include access beyond the agreed scope, after-hours work, interference with ongoing operations at the neighboring property, schedule impacts, property damage and restoration obligations, unforeseen site conditions, and disagreements over responsibility for delays or additional costs. Many of these disputes can be mitigated by clearly defining the permitted work, making provisions for situations where projects must be accelerated due to delay issues, establishing communication and coordination protocols, and definitive risk allocation within the access agreement to provide a practical framework for addressing changes as the project progresses and for resolving disputes prior to the commencement of litigation or arbitration.

Question 11

Construction projects evolve. When should an Access Agreement be revisited?

Ponte Conversation

"No project unfolds exactly as planned. Scope changes, schedule extensions, unforeseen conditions, and revised means and methods all happen. At what point should owners recognize that it's time to revisit the agreement?"

Construction Counsel

An access agreement should not be treated as a static document. It should be revisited whenever the project materially departs from the assumptions on which the agreement was negotiated, whether it be due to design changes, revised construction sequencing, expanded work areas, schedule extensions, changes in means and methods, or the discovery of unforeseen site conditions. Those developments can alter the scope of access, the parties' respective risks, and the adequacy of existing provisions governing indemnity, insurance, restoration, and delay. Periodic review helps ensure the agreement continues to reflect the realities of the project and reduces the likelihood that operational or conditions changes become legal disputes.

Question 12

Looking back over your career, what separates projects that proceed smoothly from those that ultimately end up in litigation?

Ponte Conversation

"We've found that successful projects rarely happen by accident. They usually reflect disciplined planning, good communication, and a team that's willing to ask difficult questions before work begins. From your perspective, what separates the projects that avoid disputes from those that don't?"

Construction Counsel

Projects involving access rarely end up in litigation because of a single disastrous event. More often, disputes arise from ambiguity that causes confusion for the parties, the results of which can compound over time. The projects that proceed smoothly typically have well-defined contracts that clearly allocate risk, establish practical procedures for changes, decision-making, and dispute resolution, and align with how the parties actually intend to perform. Access agreements are a good example of this concept: when they clearly define the scope of access, permitted activities, scheduling protocols, restoration obligations, indemnity, insurance, and responsibility for delays or third-party impacts, they eliminate many of the uncertainties that later become claims. Successful projects also benefit from disciplined contract administration and timely communication. In short, litigation is often the product of unmanaged expectations, of which careful drafting and consistent execution are the best tools for avoiding such disputes.

Question 13 – A Final Thought

If you could give every owner preparing to undertake a construction project one piece of advice—something you've learned over your career that isn't necessarily legal advice but practical wisdom—what would it be?

Ponte Conversation

"We'll close with something a little different. Over the course of your career, you've seen projects that became great success stories and others that became difficult lessons. Beyond contracts and case law, what's one piece of advice you would give every owner before they embark on a construction project?"

Construction Counsel

That is a great question without an easy answer! Where do I begin? 

Owners often focus on cost, schedule, and scope, but many of the most difficult disputes we encounter do not arise because the contract lacked legal protections, but rather because the parties had different expectations about how they would work together once construction began. Construction projects are dynamic. Conditions change, access requirements evolve, utilities need to be relocated, unforeseen site conditions emerge, and schedules shift. A well-drafted agreement should anticipate those realities by establishing clear and unambiguous procedures for communication, site access, changes in the work, decision-making authority, delays and dispute resolution before the first shovel goes into the ground.

This requires parties to resist the temptation to rely on informal understandings. If a contractor, utility, or neighboring property owner will need access across private property, the agreement should clearly define the process for addressing both foreseeable and unforeseen circumstances. Drafting basic agreements without consulting sophisticated counsel may seem convenient, less expensive and expedient at the outset, but it often becomes just the opposite once the project is underway. Perhaps most importantly, today's project partner may become tomorrow's adversary if expectations are not aligned. Contracts should be drafted not only for the scenario in which everything goes according to plan, but also for the inevitable moments when it does not.

In my experience, the most successful construction projects are not necessarily those with the most sophisticated contracts (although they are vitally important), but rather the ones where the parties have thoughtfully allocated responsibilities, documented expectations, and established clear processes for navigating the unexpected. Maybe most important to a successful project involving neighboring access is consistent communication among the owner, counsel, the owner’s representative and the impacted neighbor.  We have found that keeping the stakeholders in regular dialogue is worth its weight in gold when it comes to avoiding costly and time-consuming disputes.

One Final Takeaway

If there was one common thread throughout our conversation, it was this: the most significant construction risks are rarely created in the field—they are created, addressed, or avoided long before construction begins.

The drawings matter.

The schedule matters.

The budget matters.

But so do the conversations that occur before the first scaffold is erected, the questions that challenge assumptions, the documents that establish accountability, and the professionals who work together to anticipate risk before it becomes reality.

At Ponte Project Management, we have always believed that our role extends well beyond managing schedules and coordinating construction. As an extension of an owner's team, we help ask the questions that may never need to be answered later—because they were addressed before work ever began. When those conversations include experienced construction counsel, owners gain more than legal protection; they gain a stronger foundation for a successful project.

As our guest so thoughtfully reminded us, the best outcomes are rarely the result of reacting well to problems. They are the result of anticipating them.

Because when construction becomes tomorrow's headline, the documents—and the decisions—that matter most were almost always made yesterday.