Access rights - legal interpretation

Ulfar

G_M wrote: »

It's a 1970s development. There is a 'road' (cobbled cul de sac) with NO pavements running down between the houses (so you open your front door and step straight onto the 'road' [/footpath?].

At the far end, and halfway down, there are footpaths off to adjoining public roads.

My own view as most have said is that owners can drive down the road.

Watch this space for supplementary (and more complex) question in a week or so regarding enforcement of maintenance charges, including feasibility/practicality of installing a locked access gate to the road with keys issued to those owners who pay their maintenance charge but not to those who don't.........

The supplementary is an easy one to answer, you cannot restrict or remove their rights of way depending on whether they pay their service charge or not. Legally the two issues are separate.

I know this as I used to be a director of a residents association that owned the freehold for a development of 100 flats split over several blocks.

This was often bought up as a solution by new members, the association had already had legal guidance on this and it is not allowed, you also aren't allowed to shut off any lighting, water, power or any other service.

westv

So what can be done about residents who don't pay their service charges then?

Ulfar

westv wrote: »

So what can be done about residents who don't pay their service charges then?

There are several options, some of them are :

You can pursue them through the courts, if they have a mortgage you can approach the bank to pay it or in the most extreme cases revoke their lease.

You shouldn't need to get to revoking their lease as the bank will usually pay up to prevent them losing their money that is secured on the property.

To some extent what you can do will depend on whether their properties are leasehold or freehold. With leasehold properties if the want to sell the solicitor will as a matter of course make sure that all fees are paid up, with freehold this sometimes gets missed if the solicitor doesn't know there is a service charge.

tyllwyd

DVardysShadow wrote: »

So where does your 'only' bind?

• [on foot B]only[/B] over the footpaths
• on foot [B]only[/B over the footpaths]

As you have it, it is ambiguous - to the extent that it looks like the first one - ie you cannot proceed on foot down a road which you otherwise have rights to.

Do you mean you would read it as:

"Full and free right of way (in common with......) at all times and for all purposes over and along
(i) the roadways and on foot only
(ii) over the footpaths of the Development
shown coloured brown"

So you are allowed to go over the roadways on foot only? That isn't the natural or the commonsense way to read it in my opinion.

Surely it has to be

"Full and free right of way (in common with......) at all times and for all purposes over and along
(i) the roadways and
(ii) (on foot only) over the footpaths
of the Development shown coloured brown"

so that 'on foot only' relates to the footpath and not the road.

To link up 'on foot only' to roadway you'd have to say

"over and along the roadways [STRIKE]and[/STRIKE] on foot only and"

In any case, I don't think you can link the 'on foot only' up to the roadways, because if that was the case then by definition the roadway would then become a footpath not a roadway, so it becomes meaningless.

westv

Are we trying to analyse "foot", "road" and "footpath" in too much detail now?

G_M

Thanks everyone. I'm pretty happy that my own interpretation matches that of most (everyone?) here.

Regarding the maintenance fund enforcement, before speculating further, wait for Question 2 next week. I'm awaiting some further documentation which will clarify precisely where the legal issue is.

(but thanks for the pre-emptive 'lease' Vs 'freehold' distinction, ulfar. These are freehold properties but sadly it's more complex than you guess.)

tyllwyd

westv wrote: »

Are we trying to analyse "foot", "road" and "footpath" in too much detail now?

No - I'm saying that a road is a road and a footpath is a footpath.

DVardysShadow

tyllwyd wrote: »

Surely it has to be

"Full and free right of way (in common with......) at all times and for all purposes over and along
(i) the roadways and
(ii) (on foot only) over the footpaths
of the Development shown coloured brown"

This I agree with. But the way you rebracketed it in your earlier post allowed the 'only' to bind with footpaths so as to suggest the interpretation you did not want

westv

westv wrote: »

Are we trying to analyse "foot", "road" and "footpath" in too much detail now?

tyllwyd wrote: »

No - I'm saying that a road is a road and a footpath is a footpath.

But you (and others) still seem to be analysing the wording in far greater detail than I can see is needed. However, as I've said, I bow to those with far more knowledge than me so apologise if I see it too simplistically.

Yorkie1

The two clauses are distinguished by the use of the phrases "full and free .. over / along roads", and "on foot only over footpaths".

The former indicates no restrictions at all in how & why one may travel on or along the roads; the latter indicates a restriction to foot traffic only.