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Private road - damage

I live on a private track owned by the landowner of where my house is. You access over cattle grids and the track leads to our home. 

2020 the lane was immaculate when we bought, but its now terrible. I have been through 3k worth of tyres in 18 months due to the flint base level now visable and I have been advised by a tyre fitter than its like driving on knives which is why we are rinsing tyres. 

I have asked the landowner to discuss the surface with us but I am not getting anywhere. It seems finances are not able to do anything. 

Does the landowner have a duty of care to maintain the lane for our access to our home? The home was a farmhouse that he sold off 30 years ago. 

It is the only access, about 30m from a highways road used by two other properties who have the same problem. 

Thank you 
3 Children - 2004 :heart2: 2014 :heart2: 2017 :heart2:
Happily Married since 2016
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Comments

  • Alderbank
    Alderbank Posts: 2,698
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    A relevant decided case is Bramwell v Robinson [2016] EWHC B26 (Ch).

    Mr and Mrs Bramwell, like you, own a house along a private road owned by Mr Robinson. The road developed a pothole. Mr Bramwell filled it in. Hard to believe perhaps but Mr Robinson took the filling out of his road, putting the pothole back. That resulted in a court case.

    The judge said that the duty of the owner of the road was to keep it open in the sense that he did not put any barriers, locked gates etc. along it to prevent the Bramwells accessing their house.
    The judge said it is established law that the owner of a right of way (that's the Bramwells, or you in your case) also has a right to repair it. An order was made preventing Mr Robinson from interfering with the right to maintain and repair the track. 

    So you are entitled to repair the road if you wish, to save damaging your tyres. The land owner can't prevent you from doing so.
    How much does a couple of bags of MOT cost where you live?
  • Cheslea2010
    Cheslea2010 Posts: 14
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    Would probably recommend something like Road Planings. Cheaper than MOT and tends to go down tighter. But agree that you may have to take it into your own hands to repair.
  • user1977
    user1977 Posts: 13,343
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    samtoby said:

    2020 the lane was immaculate when we bought
    What advice did you get from your solicitor about maintenance liability when you bought?
  • stuhse
    stuhse Posts: 250
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    edited 18 January at 8:55AM
    The answer to your question is almost certainly no.

    You need to read your deeds to see what it says about maintenance (if anything). Most liklely it may say you have to contribute relative to your use...which is the common law position anyway (see below).

    For clarity you are one of the dominant owners (along with the other houses that have rights to use the track)- the owner of the track is the servient owner.

    Please see the relevant case law below :

    Carter v. Cole (2006) - Court of Appeal

    The Law apart from clause 3.2 of the Transfer
    Unsurprisingly the law about construction and repair of rights of way granted as easements has been settled for some centuries. The following propositions (all of which, in principle, are subject to any contrary agreement) were not controversial:-
    (1) A grantor of a right of way ("the servient owner") is under no obligation to construct the way;

    (2) The grantee may enter the grantor's land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him ("the dominant owner"); see Newcomen v Coulson (1887) 5 ChD 133, 143 per Jessel MR;

    (3) Once the way exists, the servient owner is under no obligation to maintain or repair it, see Pomfret v Ricroft (1669) 1 Wms. Saunders (1871 ed) 557 per Twysden J, Taylor v Whitehead (1781) 2 Doug KB 745 and Jones v Pritchard [1908] 1 Ch 630, 637, per Parker J;

    (4) Similarly, the dominant owner has no obligation to maintain or repair the way, see Duncan v Louch (1845) 6 QB 904;

    (5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;

    (6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost: Taylor v Whitehead (1781) 2 Doug KB, per Lord Mansfield.
    He has a right to enter the servient owner's land for the purpose but only to do necessary work in a reasonable manner, see Liford's Case (1614) 11 Co Rep 46b, 52a (citing a case in the reign of Edward IV) and Jones v Pritchard [1908] 1 Ch 630, 638 per Parker J.

    NATIONWIDE BUILDING SOCIETY Respondent
    v.
    JAMES BEAUCHAMP (A FIRM) Appellant
    [2001] EWCA Civ 275 Case No: CHANF/2000/2291/A3

    Paragraph 7
    • The judge then considered an argument on behalf of the Defendant that the Borrowers, as grantees of a right of way over the road, had the right at common law to enter upon the servient tenement and construct the estate road for themselves. The judge referred to Halsbury's Laws 4th ed. (1975) Vol 14 para. 162 where it is stated:
    "The grantee of a right of way has a right to enter upon the grantor's land over which the way extends for the purpose of making the grant effective. Thus, if a right of way for carriages is granted over a field to the grantee's house, the grantee may enter the field and make over it a formed roadway suitable for supporting the ordinary traffic of a carriageway, but the grantee may only construct such a way as is suitable to the right granted him."
    He also referred to Newcomen v Coulson (1877) 5 Ch. D. 133, on which the statement in Halsbury was based. The judge said:
    "In my judgment there is a clear distinction between the common law right of a grantee of a right of way to enter land and construct a way suitable to its ordinary usage and a right arising from an indemnity arising from a contractual obligation. The distinction is crucial in two aspects. First, when a grantee constructs a way so that he may exercise his right of way, he does so at his own expense. There is no right at common law for him to recover the cost against the grantor.
    Second, whereas a contract may and usually will specify the standard to which the carriageway must be built, the right of the grantee at common law is to make a carriage-way "such that it can be used for the purpose for which it is granted." It is a right to make an effective carriage way and no more.
    Mr. Smith [counsel then appearing for the Defendant] seeks to persuade the Court that the common law "effective carriage-way" is to be equated with the contractual undertaking given by Willen Homesmiths. That is to create estate roads to adoption standard. In my judgment there is no basis for such a submission. What is 'an effective carriage-way' would be a matter [of] expert evidence but on the face of it, what was actually done, that is to sub-base level, would appear to provide 'effective carriage-way'.

    • For my part I do not think that it assists to refer to a common law right as though the common law recognised some independent right regardless of the particular circumstances of the grant of a right of way. As I understand the authorities, the grant of a right of way is to be taken to carry with it such ancillary and incidental rights as are necessary to make the grant fully effective. This is so whether the right of way is obtained by prescription or by express grant. The law presumes this to have been the intention of the parties.

    • In Newcomen v Coulson by an award under an Inclosure Act allottees were given a right of way on foot and on horseback and with their carts and carriages and with horses, oxen and cattle, doing as little damage to the soil or the corn, grass or herbage as may be. The award expressly contemplated that the allottees might "street out" the way, and in such event a particular width was specified. Pursuant to the award, a road of the specified width was made. The Defendants, who owned part of an allotment, commenced forming a solid granite road in place of the previous cart road. The Plaintiff lord of the manor sought to restrain the improvement of the road and the erection of the bridge. Malins V.-C. refused the application saying (at p. 140):
    "I mean [the Defendants] to have the fullest right of metalling the road and making it the best road they can to meet the circumstances."
    • This court dismissed the Plaintiff's appeal. Sir George Jessel M.R. (with whom James L.J. agreed) said at pp. 143-4:
    "Then it was said, admitting the owner of each house to have a right of way, still the grantees have no right to enter upon the allotments over which the right of way is granted for the purpose of laying down a metalled road. Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word "repair" in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the Defendants have a right to make an effective carriage-way going, as they are going, by the shortest route, and not interfering with the land to a greater extent in width that the width of the street pointed out by the deed itself."
    • Unlike the judge, who appears to have derived from Newcomen the proposition that only the bare minimum could be done by the grantee of a right of way to make the way effective, I do not read the words of the Master of the Rolls as indicating some limit on the standard of "streeting out". There is no indication that this court disapproved what Malins V.-C. had said in the sentence which I have cited. The only restriction on what could be done was the prescribing of the maximum width of the way if "streeted out".

    • In Mills v Silver [1991] Ch 271 this court considered what a prescriptive right of way entailed. Dillon L.J. (with whom Parker and Stocker L.JJ. agreed) thought it clear that grantees of such a right of way were entitled to repair, as opposed to improve, the road. But he went on to contrast that with the position if there had been an express grant of a right of way. He said, at pp. 286 - 7:
    "In the second place if the first and second defendants or their predecessors had been expressly granted a right of way for all purposes with or without vehicles over the disputed track that would have entitled them not merely to repair the disputed track but to improve it to make it suitable for the accommodation of the dominant tenement even if the dominant tenement was to be used for some purpose not in contemplation at the time of the grant: see Newcomen v Coulson (1878) 7 Ch. D. 764. This is founded on the presumed intention of the grant. In the simplest case, if a general right of way is granted with or without vehicles, which is to be the principal access to a house, it is permissible for the grantee to improve it by making it up as a carriageway: see for instance Gerrard v Cooke (1806) 2 Bos. & Pul. 109"
    (The reference given for Newcomen is an obvious error for (1877) 5 Ch. D. 133, being a reference to a report on another point in subsequent proceedings in the same action.)

    In summary what the law expects is that servient and dominant owners who have knowingly bought properties with shared accesses will, when one of them thinks that maintenance is required, liase with each other and negotiate/reach an agreement on what needs doing, who is going to do it and who will contribute what towards those costs . Dont expect parties that dont use the track to contribute- does the owner use the track to access his house ?
  • propertyrental
    propertyrental Posts: 2,206
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    Is there anythimg in either your deeds, or the deeds of your neighbours, or then landlowner, that relates to maintenance responsibility?

    If not, you are dependant on the case or common law that others here have helpfully quoted.
  • jonnydeppiwish!
    jonnydeppiwish! Posts: 1,108
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    Alderbank said:
    A relevant decided case is Bramwell v Robinson [2016] EWHC B26 (Ch).

    Mr and Mrs Bramwell, like you, own a house along a private road owned by Mr Robinson. The road developed a pothole. Mr Bramwell filled it in. Hard to believe perhaps but Mr Robinson took the filling out of his road, putting the pothole back. That resulted in a court case.

    The judge said that the duty of the owner of the road was to keep it open in the sense that he did not put any barriers, locked gates etc. along it to prevent the Bramwells accessing their house.
    The judge said it is established law that the owner of a right of way (that's the Bramwells, or you in your case) also has a right to repair it. An order was made preventing Mr Robinson from interfering with the right to maintain and repair the track. 

    So you are entitled to repair the road if you wish, to save damaging your tyres. The land owner can't prevent you from doing so.
    How much does a couple of bags of MOT cost where you live?
    I definitely not an expert, so couldn’t comment whether if this is correct, but it’s possibly one of the best responses I see on these forums!
    2006 LBM £28,000+ in debt.
    2021 mortgage and debt free, working part time and living the dream
  • Cloth_of_Gold
    Cloth_of_Gold Posts: 701
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    Alderbank said:
    A relevant decided case is Bramwell v Robinson [2016] EWHC B26 (Ch).

    Mr and Mrs Bramwell, like you, own a house along a private road owned by Mr Robinson. The road developed a pothole. Mr Bramwell filled it in. Hard to believe perhaps but Mr Robinson took the filling out of his road, putting the pothole back. That resulted in a court case.

    The judge said that the duty of the owner of the road was to keep it open in the sense that he did not put any barriers, locked gates etc. along it to prevent the Bramwells accessing their house.
    The judge said it is established law that the owner of a right of way (that's the Bramwells, or you in your case) also has a right to repair it. An order was made preventing Mr Robinson from interfering with the right to maintain and repair the track. 

    So you are entitled to repair the road if you wish, to save damaging your tyres. The land owner can't prevent you from doing so.
    How much does a couple of bags of MOT cost where you live?
    I definitely not an expert, so couldn’t comment whether if this is correct, but it’s possibly one of the best responses I see on these forums!

    The subsequent post by @stuhse was also excellent I thought.
  • samtoby
    samtoby Posts: 2,438
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    All it says on the deeds is this:

    Name and name is expressed to grant the following right of way.

    Together with a right of way at all times and for all purposes over the accessway coloured green on the said plan for the purpose of obtaining ingress from and egress to the public highway'

    The accessway is coloured green on the plan. 

    The land is a private estate stretching over 500 acres bound by cattlegrids from the main roads. 

    Historically its hunting ground used by the family over centuries. 


    I have asked about getting some surface to add to the land but all I have been met with is aversion and difficulty. 
    The land is a triple SSI and thats the reason thats given that permission is required to do anything. 

    The lane was immaculate when we moved in, I am going to speak to the Solicitor and see if there is anything in the deeds that can help us. 


    Thank you 

    3 Children - 2004 :heart2: 2014 :heart2: 2017 :heart2:
    Happily Married since 2016
  • jonnydeppiwish!
    jonnydeppiwish! Posts: 1,108
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    Alderbank said:
    A relevant decided case is Bramwell v Robinson [2016] EWHC B26 (Ch).

    Mr and Mrs Bramwell, like you, own a house along a private road owned by Mr Robinson. The road developed a pothole. Mr Bramwell filled it in. Hard to believe perhaps but Mr Robinson took the filling out of his road, putting the pothole back. That resulted in a court case.

    The judge said that the duty of the owner of the road was to keep it open in the sense that he did not put any barriers, locked gates etc. along it to prevent the Bramwells accessing their house.
    The judge said it is established law that the owner of a right of way (that's the Bramwells, or you in your case) also has a right to repair it. An order was made preventing Mr Robinson from interfering with the right to maintain and repair the track. 

    So you are entitled to repair the road if you wish, to save damaging your tyres. The land owner can't prevent you from doing so.
    How much does a couple of bags of MOT cost where you live?
    I definitely not an expert, so couldn’t comment whether if this is correct, but it’s possibly one of the best responses I see on these forums!

    The subsequent post by @stuhse was also excellent I thought.
    It was, but the first was concise and to the point 😉 
    2006 LBM £28,000+ in debt.
    2021 mortgage and debt free, working part time and living the dream
  • Cloth_of_Gold
    Cloth_of_Gold Posts: 701
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    I
    Alderbank said:
    A relevant decided case is Bramwell v Robinson [2016] EWHC B26 (Ch).

    Mr and Mrs Bramwell, like you, own a house along a private road owned by Mr Robinson. The road developed a pothole. Mr Bramwell filled it in. Hard to believe perhaps but Mr Robinson took the filling out of his road, putting the pothole back. That resulted in a court case.

    The judge said that the duty of the owner of the road was to keep it open in the sense that he did not put any barriers, locked gates etc. along it to prevent the Bramwells accessing their house.
    The judge said it is established law that the owner of a right of way (that's the Bramwells, or you in your case) also has a right to repair it. An order was made preventing Mr Robinson from interfering with the right to maintain and repair the track. 

    So you are entitled to repair the road if you wish, to save damaging your tyres. The land owner can't prevent you from doing so.
    How much does a couple of bags of MOT cost where you live?
    I definitely not an expert, so couldn’t comment whether if this is correct, but it’s possibly one of the best responses I see on these forums!

    The subsequent post by @stuhse was also excellent I thought.
    It was, but the first was concise and to the point 😉 
    So was stuhse's if you skipped to the summary at the end. ;)

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