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    • Old Grey Mare
    • By Old Grey Mare 9th Mar 18, 12:42 PM
    • 12Posts
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    Old Grey Mare
    Maintenance of private road
    • #1
    • 9th Mar 18, 12:42 PM
    Maintenance of private road 9th Mar 18 at 12:42 PM
    Apologies if this is in the wrong section.

    I would like a little advice before I seek legal advice next week.

    I own a smallholding of about 3 acres which is at the end of a farm road which is a mile long. I have consulted my deeds which does say that I have a right of way along the roadway subject to the payment of a proportionate part according to user of the cost of keeping the road in good repair and condition.

    There are three residential properties and two farms on the lane and they sublet barns to various businesses. There are hundreds of acres of agricultural land and the road is subject to tractors/combine harvesters, heavy lorries delivering timber to a woodworking company, lorries delivering feed to the poultry factory on one of the farms. It gets much worse in the summer with crops being taken from the fields.

    Now one of the farmers has decided the road needs resurfacing as he has had complaints from drivers who deliver his poultry feed. I don't mind dodging the pot holes and use the road only once or twice a day.

    He is a bullying man and has given me a note telling me I am to pay him £5,500 towards the cost of the upkeep. None of the residents have been consulted as to what they think their fair share should be. We don't know what quotes (if any) were given, how much other residents are paying, and how the cost was worked out.

    I am very worried as I can't afford this.
Page 1
    • da_rule
    • By da_rule 9th Mar 18, 12:51 PM
    • 2,679 Posts
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    da_rule
    • #2
    • 9th Mar 18, 12:51 PM
    • #2
    • 9th Mar 18, 12:51 PM
    In my experience these clauses result in the cost being shared between owners of the properties that share the use of the road/lane, providing they have the same covenants in their deeds.

    Therefore if there a 5 properties using the road they should all contribute 1/5.

    Depending on the terms of the covenant the person with the benefit (the person allowed to ask for the money) may not have to consult with you or even provide evidence of the costs. However, if you don't pay and they take the matter to court then they will have to provide proof of the costs.

    Problems can also arise where the person does the work themselves. They could charge for their labour as well as the material costs.

    At this stage I would write to him and ask him to evidence:
    1) Why you are liable to contribute (he may not know about the covenant and therefore may just be chancing his arm);
    2) What works he is actually going to have done;
    3) How he has calculated the overall costs of the works;
    4) How he has divided this cost.

    A well written letter may at least make him think twice about his behaviour.
    • Old Grey Mare
    • By Old Grey Mare 9th Mar 18, 1:13 PM
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    Old Grey Mare
    • #3
    • 9th Mar 18, 1:13 PM
    • #3
    • 9th Mar 18, 1:13 PM
    Thanks da_rule, I will do that. I don't live on the lane but I have my smallholding there but that probably doesn't make a difference anyway.
    • Davesnave
    • By Davesnave 9th Mar 18, 1:58 PM
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    Davesnave
    • #4
    • 9th Mar 18, 1:58 PM
    • #4
    • 9th Mar 18, 1:58 PM

    I own a smallholding of about 3 acres which is at the end of a farm road which is a mile long. I have consulted my deeds which does say that I have a right of way along the roadway subject to the payment of a proportionate part according to user of the cost of keeping the road in good repair and condition..
    Originally posted by Old Grey Mare
    At least you are using all the road, not just the first 50m.

    So, could this be what your title documents mean by, "a proportionate part according to use." i.e. people pay according to the length of road they use?

    Other interpretations could be based on frequency of use, or type of use, but that brings with it the impossibilty of monitoring.

    I think it might be helpful for you to quote paragraph where apportioning of cost is mentioned, rather than just a potted version of it.
    If you are finding huge gaps between your paragraphs and use Firefox, MSE know about the problem. However, they aren't necessarily doing anything about it yet....
    https://forums.moneysavingexpert.com/showthread.php?t=5844460
    • davidmcn
    • By davidmcn 9th Mar 18, 2:12 PM
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    davidmcn
    • #5
    • 9th Mar 18, 2:12 PM
    • #5
    • 9th Mar 18, 2:12 PM
    "According to user" is generally interpreted as taking account of the frequency/type of use, so a property which has tractors/lorries churning up the road ought to pay more than someone who drives a car along it twice a day. It sounds reasonable in principle but is a bit of a fudge when drafting and just leaves it open for argument.

    However, the OP can't avoid liability simply because they "don't mind dodging the pot holes" - if the road needs maintenance then they'll need to pay some sort of share.
    • laidbackgjr
    • By laidbackgjr 9th Mar 18, 2:51 PM
    • 467 Posts
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    laidbackgjr
    • #6
    • 9th Mar 18, 2:51 PM
    • #6
    • 9th Mar 18, 2:51 PM
    I own a smallholding of about 3 acres which is at the end of a farm road which is a mile long. I have consulted my deeds which does say that I have a right of way along the roadway subject to the payment of a proportionate part according to user of the cost of keeping the road in good repair and condition.
    Originally posted by Old Grey Mare
    The bit I'd be worried about is the right of way subject to the payment.

    If you didn't pay and could no longer use the road - how would you access your small holding - would your small holding be effectively worthless without the right of way?

    I think you will have to pay something - but by all means challenge the total cost and how it's allocated as the deeds you've copied are quite imprecise on how the amount arises.
    • moneyistooshorttomention
    • By moneyistooshorttomention 9th Mar 18, 3:05 PM
    • 15,835 Posts
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    moneyistooshorttomention
    • #7
    • 9th Mar 18, 3:05 PM
    • #7
    • 9th Mar 18, 3:05 PM

    "a proportionate part according to user" .
    Originally posted by Old Grey Mare
    That is probably THE crunch words in this and I would certainly interpret them personally as meaning "according to the amount of use by each individual user". That being - you're only exerting very light use on the road - but these farmers are obviously exerting very heavy use on the road. A solicitor could advise better than we can obviously as to the most likely interpretation of that phrase - so just as well to see one. Meanwhile - I'd be trying to do a bit of monitoring of respective road usage myself (ie keeping a diary of eg "User No. 1 was up/down it 5 times this day and 6 times that day - with his heavy tractor of so-and-so make").

    All the more so in case this guy comes up with any further bills in the future.

    In all fairness - he should have got 3 quotes/provided copies of them to all parties concerned/given details to all parties concerned of how he has broken down the costs/given plenty of advance notice of such a large bill, etc.

    From memory - I think it doesnt matter unduly if he has chosen to pick the dearest quote going - as I believe a court would only allow him to get the amount a reasonable quote would charge (ie he'd have to cover the difference between a "reasonable" quote and an "expensive" quote himself).

    Have you any idea how the other road-users have reacted to this? What size of bill he has presented them with?
    Last edited by moneyistooshorttomention; 09-03-2018 at 3:07 PM.
    Living in a part of Britain where one has to "look over shoulder" before you speak...eek:
    • Old Grey Mare
    • By Old Grey Mare 9th Mar 18, 4:30 PM
    • 12 Posts
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    Old Grey Mare
    • #8
    • 9th Mar 18, 4:30 PM
    • #8
    • 9th Mar 18, 4:30 PM
    That is probably THE crunch words in this and I would certainly interpret them personally as meaning "according to the amount of use by each individual user". That being - you're only exerting very light use on the road - but these farmers are obviously exerting very heavy use on the road. A solicitor could advise better than we can obviously as to the most likely interpretation of that phrase - so just as well to see one. Meanwhile - I'd be trying to do a bit of monitoring of respective road usage myself (ie keeping a diary of eg "User No. 1 was up/down it 5 times this day and 6 times that day - with his heavy tractor of so-and-so make").

    All the more so in case this guy comes up with any further bills in the future.

    In all fairness - he should have got 3 quotes/provided copies of them to all parties concerned/given details to all parties concerned of how he has broken down the costs/given plenty of advance notice of such a large bill, etc.

    From memory - I think it doesnt matter unduly if he has chosen to pick the dearest quote going - as I believe a court would only allow him to get the amount a reasonable quote would charge (ie he'd have to cover the difference between a "reasonable" quote and an "expensive" quote himself).

    Have you any idea how the other road-users have reacted to this? What size of bill he has presented them with?
    Originally posted by moneyistooshorttomention
    The only neighbours I speak to is the only other smallholder owner and the owner of the nearest property to me. They are also shocked at the size of the bill. The owner of the house only uses the lane twice a week but also has a bill of £5,500.
    • Old Grey Mare
    • By Old Grey Mare 9th Mar 18, 4:32 PM
    • 12 Posts
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    Old Grey Mare
    • #9
    • 9th Mar 18, 4:32 PM
    • #9
    • 9th Mar 18, 4:32 PM
    The bit I'd be worried about is the right of way subject to the payment.

    If you didn't pay and could no longer use the road - how would you access your small holding - would your small holding be effectively worthless without the right of way?

    I think you will have to pay something - but by all means challenge the total cost and how it's allocated as the deeds you've copied are quite imprecise on how the amount arises.
    Originally posted by laidbackgjr
    I can't see how this could be enforced. The lane is also a public bridle way and footpath and regularly has cars parked half way up the lane for members of the public to access the rights of way.
    • Old Grey Mare
    • By Old Grey Mare 9th Mar 18, 4:34 PM
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    • 6 Thanks
    Old Grey Mare
    "According to user" is generally interpreted as taking account of the frequency/type of use, so a property which has tractors/lorries churning up the road ought to pay more than someone who drives a car along it twice a day. It sounds reasonable in principle but is a bit of a fudge when drafting and just leaves it open for argument.

    However, the OP can't avoid liability simply because they "don't mind dodging the pot holes" - if the road needs maintenance then they'll need to pay some sort of share.
    Originally posted by davidmcn
    I really am willing to pay a contribution but think £5,500 is excessive for my minuscule amount of road use.
    • moneyistooshorttomention
    • By moneyistooshorttomention 9th Mar 18, 5:24 PM
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    moneyistooshorttomention
    Well - with you having both "easement of necessity" to get to your land and the fact "The Public" are using it - then it certainly doesn't look as if he could actually stop you using it. So that's one problem out of the way.

    ***********

    The other fact I'd be wondering about, in your position, is what standard he wants to do this lane to. It's not just down to whether he wants to charge an excessively high amount for the standard he has chosen. The question is also = what standard does he want to do it to?

    There are many different standards we could be talking about here - through from:
    - chucking down a handful of chippings all the way along it
    through to
    - best quality tarmacking job.

    Has he even said what standard he has in mind?

    This guy needs to wake up and smell the coffee that we're in the 21st century now - and it's out of keeping with this century to try doing things in such an autocratic/feudal/outdated all round way as thinking he is the only one that decides whats what on behalf of others like that.

    EDIT; An off-centre thought on why he is trying to act in this way is I'm also wondering whether he's trying to scare one (or more) of the properties using the road to sell up. Has he got any inkling of the finances of any of you? Would it be useful for him to try and use any of your properties added to his own if he could get them? This may be what he is up to - rather than the "on the face of it" thing of he's planning to do it anyway (in said outdated way) and trying for some of the costs of it to be paid for for him.

    All round - I'd be trying to work out whether he was trying to "put the Fear" into any of you (but couldnt actually manage to force any of you in this outdated way).
    Last edited by moneyistooshorttomention; 09-03-2018 at 5:30 PM.
    Living in a part of Britain where one has to "look over shoulder" before you speak...eek:
    • Tom99
    • By Tom99 9th Mar 18, 5:30 PM
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    Tom99
    If it was proportional to use would it not say 'use' rather than 'user'. So say 5 users = 20% each.
    • moneyistooshorttomention
    • By moneyistooshorttomention 9th Mar 18, 5:33 PM
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    moneyistooshorttomention
    If it was proportional to use would it not say 'use' rather than 'user'. So say 5 users = 20% each.
    Originally posted by Tom99
    Well that's not how others of us (including davidmcn - who I think might be a legal brain?) are interpreting it.
    Living in a part of Britain where one has to "look over shoulder" before you speak...eek:
    • Tom99
    • By Tom99 9th Mar 18, 5:56 PM
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    Tom99
    Well that's not how others of us (including davidmcn - who I think might be a legal brain?) are interpreting it.
    Originally posted by moneyistooshorttomention
    Yes I can see that, I am just pointing out that 'user' is the person(s) using, not the frequency of use.
    • davidmcn
    • By davidmcn 9th Mar 18, 6:01 PM
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    davidmcn
    Yes I can see that, I am just pointing out that 'user' is the person(s) using, not the frequency of use.
    Originally posted by Tom99
    One of those odd ones where it's legal jargon but looks like a normal word. From the OED:

    user, n.

    Law.

    Continued use, exercise, or employment of a right, property, practice, etc.; presumptive right arising from such use. Also in figurative context.
    • Old Grey Mare
    • By Old Grey Mare 9th Mar 18, 6:06 PM
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    Old Grey Mare
    Well - with you having both "easement of necessity" to get to your land and the fact "The Public" are using it - then it certainly doesn't look as if he could actually stop you using it. So that's one problem out of the way.

    ***********

    The other fact I'd be wondering about, in your position, is what standard he wants to do this lane to. It's not just down to whether he wants to charge an excessively high amount for the standard he has chosen. The question is also = what standard does he want to do it to?

    There are many different standards we could be talking about here - through from:
    - chucking down a handful of chippings all the way along it
    through to
    - best quality tarmacking job.

    Has he even said what standard he has in mind?

    This guy needs to wake up and smell the coffee that we're in the 21st century now - and it's out of keeping with this century to try doing things in such an autocratic/feudal/outdated all round way as thinking he is the only one that decides whats what on behalf of others like that.

    EDIT; An off-centre thought on why he is trying to act in this way is I'm also wondering whether he's trying to scare one (or more) of the properties using the road to sell up. Has he got any inkling of the finances of any of you? Would it be useful for him to try and use any of your properties added to his own if he could get them? This may be what he is up to - rather than the "on the face of it" thing of he's planning to do it anyway (in said outdated way) and trying for some of the costs of it to be paid for for him.

    All round - I'd be trying to work out whether he was trying to "put the Fear" into any of you (but couldnt actually manage to force any of you in this outdated way).
    Originally posted by moneyistooshorttomention
    It was a farm track until 14 years ago when he decided to set up a poultry factory and knew suppliers wouldn't deliver unless it was a tarmacked road. The residents were not told of his plans for a poultry factory but were persuaded to invest in a new road and were apparently furious when they learned it was only laid to appease his suppliers. It was a top quality job and presumably be repaired to the same standard.
    Last edited by Old Grey Mare; 09-03-2018 at 6:08 PM.
    • happyandcontented
    • By happyandcontented 9th Mar 18, 6:08 PM
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    happyandcontented
    I can't see how this could be enforced. The lane is also a public bridle way and footpath and regularly has cars parked half way up the lane for members of the public to access the rights of way.
    Originally posted by Old Grey Mare
    If you can't pay/don't want to pay could you (legally) relinquish your rights under that covenant but retain access rights under the public right of way? It may be an avenue worth exploring.
    • agrinnall
    • By agrinnall 9th Mar 18, 6:26 PM
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    agrinnall
    Have you tried to get your own quote for resurfacing the road? £33,000 for a mile long road may not be excessive given how much it costs to build a mile of motorway (several million at least).
    • moneyistooshorttomention
    • By moneyistooshorttomention 9th Mar 18, 7:11 PM
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    moneyistooshorttomention
    It was a farm track until 14 years ago when he decided to set up a poultry factory and knew suppliers wouldn't deliver unless it was a tarmacked road. The residents were not told of his plans for a poultry factory but were persuaded to invest in a new road and were apparently furious when they learned it was only laid to appease his suppliers. It was a top quality job and presumably be repaired to the same standard.
    Originally posted by Old Grey Mare
    Ah-ha and then there's another question for you to ask this solicitor when you see them.

    1. How long have you had this smallholding?
    2. How long have the others using this road had their properties?

    One way or another - I'd be willing to bet at least one of you has had their property for over 14 years and therefore I would have thought (almost certainly) they would be under the conditions laid down in their paperwork at the time they bought their properties.

    With that - then I can't really see how any of you that "came on the scene" within the last 14 years could have different conditions to them? Worth asking about that fact - as to whether different owners in the road could have different conditions perhaps?

    From what I've read (as a layperson) I believe the law only allows for charging for private road maintenance to the standard it was at at the time the person/people with ROW on the road bought it. If the "owner" of the road then wants to do it to a better standard - then that's down to them and they can't charge the difference for that better standard. They can only charge for the standard it was at at the time the road-user bought their place.

    So - how long have you had this smallholding of yours (ie did you get it before or after the upgrading of this track)?

    Even if you did get it after the upgrading of this track - if your paperwork uses the same wording as the paperwork of the last owner of your smallholding prior to this road upgrading = would that last owners wording apply to subsequent owners (ie yourself)?

    All round - I would have thought this guy might be on a very sticky wicket trying to charge for an upgraded standard to the previous one. Well worth checking on that point with your solicitor.
    Living in a part of Britain where one has to "look over shoulder" before you speak...eek:
    • moneyistooshorttomention
    • By moneyistooshorttomention 9th Mar 18, 7:15 PM
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    moneyistooshorttomention
    Have you tried to get your own quote for resurfacing the road? £33,000 for a mile long road may not be excessive given how much it costs to build a mile of motorway (several million at least).
    Originally posted by agrinnall
    Definitely something I'd be doing personally - and that quote would be for getting the road maintained to "previous farmtrack standard".

    With that I'd be surprised if the actual bill comes to more a few thousand £s between all of you. It may be that the bill is, in fact, absolutely non-existent (ie because the road is already at the previous farmtrack standard - and therefore doesnt need doing to "maintain the status quo").

    Between the improved standard (for his purposes only) and the public ROW (which you'd obviously still be able to use on the exact same basis as anyone else) - I have my doubts whether he can make you/anyone else there pay anything at all.
    Living in a part of Britain where one has to "look over shoulder" before you speak...eek:
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