Access rights - legal interpretation

tyllwyd

DVardysShadow wrote: »

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

No it didn't.

Richard_Webster

OK, I think I get the issue.

It could be argued, I suppose, that the right is only on foot over footpaths coloured brown and not over roadways. The difficulty with this is that if you take that view you are not saying what roadways you have rights over - all those on the development?

Therefore when you have considered other possible meaning I think you are left concluding that although not well worded the only sensible conclusion is that you can use the brown area for access and insofar as it doesn't consist of footpath, you can do so with vehicles.

DVardysShadow

tyllwyd wrote: »

No it didn't.

Yes it did

tyllwyd wrote: »

My interpretation :

.... [on foot only over the footpaths]

DVardysShadow wrote: »

So where does your 'only' bind?

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

You have left the binding of 'only' open between 'on foot' and 'over footpaths'. Given that it is in the middle, it won't bind both ways. So your bracketing leaves the interpretation open.

G_M

PART 2

Now seeking both 1) a legal solution and/or 2) a pragmatic/practical solution.

The Development was built in the 1970s. It is a single (private) 'road' (as previously described) with 29 houses. The houses are all freehold. A Management Company exists in which all owners have shares. The Management Company now owns the road.

When each property was originally sold, there was a Transfer giving the purchaser and their successors certain rights (access, drains, garden maintenance etc). It also required the purchasor(+ successors) to pay the vendor or his successor (now the Managemnt Company) 1/26th of the costs of maintenance.

Issue 1: there are 29 properties each paying 1/26th cost, due to error in the 1970s Transfer.

Historically over many years now, a small minority (around 10) of the properties have made annual payments which have covered a gardener, annual clearing of gutters/drains etc. A Property Maintenance company is responsible for collecting the money (ha ha!) and arranging the work.

The road now needs re-surfacing (£30,000?), and there is a need for a gate (to control commuters parking in the road), and whilst there are some funds built up, obviously those who have contributed now feel it unfair that most have contributed nothing.

There is no restriction (other than the original Transfers) registered with the Land Registry requiring new purchasers to enter into a covenant with the Mgmt Co.

Issue 2. It appears there is currently no obligation on owners (apart from the one remaining original owner!) to contribute
Issue 3. The Transfer (and Mgmt Co's role) is limited to road maintenance (+ garden etc) and does NOT extend (apparently) to erecting a security gate.

So the questions are:
1) is there a legal way to force owners to contribute?
2) (supplementary) if so, is the 1/26th an issue given 29 properties?
3) Can the Mgmt Co legally erect a security gate?
4) If so, must access through it be given to all, or have those who fail to contribute 'forfeited' their right of (vehicular) access?
5) Apart form appealing to owners' better nature (limited success - esp as around 12 are absent landlords), is there another way of 'persuading' them to contribute?

DVardysShadow

It seems to me that the original covenants would still stand - if correctly executed in the original deeds, the obligations to pay for the Management transfer with the properties and do not remain with the original purchasers

On 2], it seems to me that the 26 vs 29 issue was no error, but a device for the Management Company to turn in a profit of 12%. So in theory, there ought to be a divi.

On 3], I would say that they could erect a gate if there was overwhelming support, but only for keeping the commuters out. It would not be acceptable to use it for preventing access as granted by the deeds. It would be a wrong which would not put right the wrong of not paying dues.

Assuming the deeds for management charges were correctly executed, it would seem to me that the correct way of forcing payment would be to sue and put a charge on each property if the matter is not settled.

Yorkie1

Caveat: I am not an expert.

When each property was originally sold, there was a Transfer giving the purchaser and their successors certain rights (access, drains, garden maintenance etc). It also required the purchasor(+ successors) to pay the vendor or his successor (now the Managemnt Company) 1/26th of the costs of maintenance.

Q1. I'm not sure I agree with your statement that there's no covenant to bind subsequent purchasers. It was stated to benefit and bind all subsequent purchasers; if the original transfer is registered with the LR, I'd have thought that the covenants will likewise be shown / registered and will bind all house owners whether original or subsequent, as it does the vendor / Mgmt Co (i.e. original and successor).

Therefore the obligation to contribute would be as binding on subsequent house purchasers as it was on the original house purchasers.

I don't know what the legal way is of enforcing this covenant. I don't think debts can be pursued for more than 6 years, but I suppose that the MCo could issue a claim for that amount in the county court??? I suspect that it would have to be the MCo which enforced the covenant as it, not the individual houses, has the particular benefit of the covenant - but you really would need to take proper legal advice.

Q2. Practically speaking, I think it is easiest to be stuck with the 1/26th. It will be in every property's legal documents and every house owner has technically signed up to this fraction by buying the house. It just means that there is a surplus each year, which perhaps could be carried over either into a larger fund or to be offset against next year's charges, or the surplus returned to properties at the end of each year. Not sure how whether you'd divide it up amongst all, or all contributors ... another rats nest not to stir up!

Q3 & 4. As also highlighted above and stated in the earlier parts of your thread, there is a right of access for every house on foot over the footpaths and by vehicle over the roads, which (from what you've posted) is not limited according to compliance with the maintenance charge, so my view is that the gate could not bar access to those who had not paid. I guess you'd also need to liaise with emergency services so that they can get access if need be.

Just thinking back to the plan / brown colouring on it - as the entire close is coloured brown (i.e. a 'footpath'), is there any mileage in looking at the wider plan to see if it shows clearly that only foot traffic was intended to enter the entire close, and vehicles to stop at the entrance to the close? Provision of parking spaces, for example?

5. Assuming there's no mileage in the footpath / plan point above, I think any court would not take kindly to a threat to withhold a legal right of access until payment was made. Think it might be called blackmail ... A legal application for unpaid maintenance to the registered owners would be the way to go, I think.

Caveat repeated.

Edit: beaten to it by DVS, who is much better at 'succinct' than I am!

Ulfar

The requirement to pay would have had to be agreed by each purchaser for it to still be binding. There are quite a lot of cases where properties are freehold where this transfer requirement is overlooked or forgotten. In these cases the covenant becomes unenforceable.

With leasehold properties it doesn't get overlooked as the lease will contain requirements to pay for service charges and when the lease is transferred you sign to accept the lease and its terms.

This is a side issue though because even if the covenant is still in force for all properties you cannot force them to pay for improvements above the original facilities.

So you could ask for resurfacing costs but won't get away with the new gate as this is a new feature.

As I pointed out in a previous post whether someone pays or not, you cannot restrict their access rights or any other service.

G_M

Ulfar wrote: »

The requirement to pay would have had to be agreed by each purchaser for it to still be binding. There are quite a lot of cases where properties are freehold where this transfer requirement is overlooked or forgotten. In these cases the covenant becomes unenforceable.
......

This is a side issue though because even if the covenant is still in force for all properties you cannot force them to pay for improvements above the original facilities.

So you could ask for resurfacing costs but won't get away with the new gate as this is a new feature.

As I pointed out in a previous post whether someone pays or not, you cannot restrict their access rights or any other service.

This is indeed the issue, but as yet I see no solution - either legal or practical.

DVardysShadow

Ulfar wrote: »

The requirement to pay would have had to be agreed by each purchaser for it to still be binding. There are quite a lot of cases where properties are freehold where this transfer requirement is overlooked or forgotten. In these cases the covenant becomes unenforceable.

I would appreciate a view from a professional over this. Presumably, these self same people are relying on the covenants within the self same deeds to enable them to pass their sewage down the drains of the estate?

Richard_Webster

GM's assumption is correct. Positive covenants by freeholders to pay money etc are not binding on successors in title. This is why flats are normally leasehold where these rules do not apply as between freeholder and those holding leases.

Accordingly with these freehold estates with management companies looking after roads there are two ways of dealing with it when the estate is first sold - either the seller builder imposes a variable estate rent charge, which can be collected or a restriction is placed on the titles of each plot preventing a transfer being registered unless the transferee first enters into a deed of covenant with the management company to make the payments and to require his buyer to enter into such a covenant. The Management Company then produces the consent when it gets the deed of covenant.

Unfortunately we do come across quite a number of schemes where this detail has not been thought through properly and I am sure OP's situation is by no means unique.

As OP has said, only one person who is an original first purchaser is legally bound to make the payments.

So OP and the others have a real problem.

There is some authority for saying that if the right to use the road is conditional on you making a payment, then you can't use the road if you don't make a payment, and then the fact that you have not covenanted to do so is not so important.. Here the devil is likely to be in the detail. Has the company got power to take action to enforce payment from those who should pay? If so then possibly the enforcement would be to erect a gate and only give keys to those who pay - but this is all very dodgy ground, I'm afraid.