Right of way maintenance/encroachment

dottiec1949
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Right of way maintenance/encroachment

Post by dottiec1949 » Sun Jul 27, 2014 1:21 pm

I own and live on a long access road at the farthest end from the public highway. On entering the access road, there are two cottages to the right which were previously one dwelling. The current owner of No 1 - nearest the public highway - (has lived there for 25 years) sold one half of her property which now forms no 2. The owners of these two properties have a right of way on the access road as far as No 2’s garage which is attached to her house but neither have any parking rights.

They have only a very small garden which is shared by the two cottages and I believe the owner of No 2 believes she owns more of this than is the case. The owner of No 1 retained a triangular portion in the middle of the garden (to include her gateway which both owners use), which has a separate title deed. I found this out from Land Registry records.

The owner of No 1 is selling her property and I wonder if anyone could help with the following questions:

1 The wall separating their garden from the access road encroaches onto the right of way making the road only just the minimum width. I suppose it would be a struggle to try and get the wall moved to its rightful place (its a dog leg rather than the straight line it should be). The latter part of the dog leg is a wooden fence and where it joins the wall is has become loose and encroaches even further onto the road. Should I write to the owner of No 1 asking her to confirm that she actually owns the wall and requesting she secures the fence in its original position. (Should I ask for a solicitors letter from her).

2 The title deed for both properties states that the owners should contribute towards maintenance of the road. No 1 owner has lived there around 25 years, No 2 for about 10 years. I have lived in my property for 4 years and have actually had repair work done at their end of the road to make it safe. We hope to resurface the road in the next 12 months and my solicitor has said I should ask for contributions from them proportionate to use – he says if they refuse they shouldnt be allowed to use the right of way as it is a condition of the easement. This contribution would not be a large amount – more of a gesture so that we don’t become solely responsible for repairs in the future. My worry is that No 1 is selling her house and I think she should make the new owners aware that this request will be coming. Should I write and tell No 1 that we shall be requesting a contribution and can she ensure this is passed via her solicitor to the new owners – or is there a better way of doing this eg a formal request for the contribution now.

I don’t want this to become a dispute so would prefer not to involve solicitors at this point if possible.

Any help would be much appreciated.

humptydumpty
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Re: Right of way maintenance/encroachment

Post by humptydumpty » Sun Jul 27, 2014 6:23 pm

Who actually owns the access roadway?

mugwump
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Re: Right of way maintenance/encroachment

Post by mugwump » Sun Jul 27, 2014 6:33 pm

humptydumpty wrote:Who actually owns the access roadway?
From OP
I own and live on a long access road at the farthest end from the public highway.

arborlad
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Re: Right of way maintenance/encroachment

Post by arborlad » Sun Jul 27, 2014 7:51 pm

dottiec1949 wrote: We hope to resurface the road in the next 12 months and my solicitor has said I should ask for contributions from them proportionate to use – he says if they refuse they shouldnt be allowed to use the right of way as it is a condition of the easement. .

That's contrary to the normal advice on here.
arborlad

smile...it confuses people

dottiec1949
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Re: Right of way maintenance/encroachment

Post by dottiec1949 » Sun Jul 27, 2014 10:08 pm

Would it be possible to tell me what the normal advice would be please. I thought it was strange when he advised this. Perhaps I misunderstood him although difficult to see how.
Because the owner of No 1 is selling her property, is there anything I can do to ensure the new owner is aware that he/she will be approached re a contribution, or should we request a contribution now from the current owner. Also how should I raise the question of the encroachment onto the right of way. Any advice would be appreciated.

Thank you

arsie
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Re: Right of way maintenance/encroachment

Post by arsie » Sun Jul 27, 2014 10:58 pm

Hi

I don't see why you shouldn't write to both no's 1 and 2 explaining that you are planning to refurbish the right of way in the next year. I would get some reasonably accurate idea of the cost and give an estimate of 'reasonable' contributions. To my mind, this ought to be an equal 3-way split for the length of the access road that they share with you and 100% at your cost for the remainder of the length that only you may use. I would ask your solicitor to see if he/she thinks this is fair.

Whether or not they would be violating their right to use the right of way if they non contribute depends on the wording in the deeds. I would ask your solicitor to explain why this is so in your situation - there is no 'general rule'.

It is up to the vendor of no 1 to respond to questions from a prospective buyer's solicitor. Any reasonably diligent solicitor seeing a clause about maintenance should ask how often and how much has been asked by way of contribution in the past.

The current owner of no 1 will then be able to answer with an accurate figure.

dottiec1949
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Re: Right of way maintenance/encroachment

Post by dottiec1949 » Mon Jul 28, 2014 11:36 am

Hi
Thank you for an excellent response. I have now emailed my solicitor to clarify what he previously said. We have a costing for doing the whole road and I will consider your advice about contributions, although to be honest I was intending asking much less. It is just a measure to keep everyone involved with the road maintenance - I don't want to take on the whole job and expense myself and then find out that by doing this I have somehow released them from their responsibilities (although they have never carried out any maintenance). I'll ask my solicitor but it is good to get other expert's opinions as I don't necessarily thing the solicitor's advice is the best way forward (even if correct in law).

Thanks again

MacadamB53
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Re: Right of way maintenance/encroachment

Post by MacadamB53 » Mon Jul 28, 2014 1:19 pm

Hi Dottie,

although they have never carried out any maintenance

IMHO it is most unlikely that your neighbour's properties have been burdened with anything more than having to pay a proportion towards any maintenance your property owner completes, rather than have to instigate any maintenance.

I would ask the sols if the planned work is definitely "maintenance".

Kind regards, Mac

dottiec1949
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Re: Right of way maintenance/encroachment

Post by dottiec1949 » Mon Jul 28, 2014 2:37 pm

Thank you for your response.

The road is in a terrible mess and I have paid to have it "patched up" in the past for safety reasons (having broken my ankle). We intend having the area that we all use (entrance) levelled and resurfaced with new manhole covers - nothing less would make that much difference. Is this not regarded as maintenance, bearing in mind the road's current condition. We have lived here for 4 years and I would think the road has not been otherwise tended to since the early seventies, when our bungalow was built by the then owner. The option we have chosen for the area of access road in question is thorough but the simplest; the remainder of the road to our bungalow will have more intensive work undertaken to incorporate drainage - so not a cheap job.

Is the re-surfacing of the "entrance" area not considered maintenance and as such are we unable to request a contribution?

Many thanks for your help - it is much appreciated.

MacadamB53
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Re: Right of way maintenance/encroachment

Post by MacadamB53 » Mon Jul 28, 2014 3:18 pm

Hi Dottie,

Is the re-surfacing of the "entrance" area not considered maintenance and as such are we unable to request a contribution?

that is the question to ask your sols - I know I'd be asking mine if I was one of your neighbours and you asked me to contribute (I'm not saying I wouldn't contribute btw :))

I've always thought of "maintenance" as "prevention" and "repairs" as "cure" but I'm not suggesting my thoughts have any legal meaning.

I'd be interested to know the response if you do ask...

as an aside (if I may) poor drainage will cause problems so don't skimp if you can avoid it.

Kind regards, Mac

arborlad
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Re: Right of way maintenance/encroachment

Post by arborlad » Mon Jul 28, 2014 8:26 pm

dottiec1949 wrote:Would it be possible to tell me what the normal advice would be please.
Thank you

Have a read of Pilmans responses in this thread: http://www.gardenlaw.co.uk/phpBB2/viewt ... =8&t=19505

My understanding is that you can repair or maintain to the standard that you wish, but any works that require a financial contribution from third parties must be pre-approved. The remedy for non payment is through the courts - not blocking the right of way.
arborlad

smile...it confuses people

arsie
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Re: Right of way maintenance/encroachment

Post by arsie » Mon Jul 28, 2014 10:07 pm

dottiec1949 wrote:Thank you for your response.

The road is in a terrible mess and I have paid to have it "patched up" in the past for safety reasons (having broken my ankle). We intend having the area that we all use (entrance) levelled and resurfaced with new manhole covers - nothing less would make that much difference. Is this not regarded as maintenance, bearing in mind the road's current condition. We have lived here for 4 years and I would think the road has not been otherwise tended to since the early seventies, when our bungalow was built by the then owner. The option we have chosen for the area of access road in question is thorough but the simplest; the remainder of the road to our bungalow will have more intensive work undertaken to incorporate drainage - so not a cheap job.

Is the re-surfacing of the "entrance" area not considered maintenance and as such are we unable to request a contribution?

Many thanks for your help - it is much appreciated.
We did just that here recently and, yes, I consider the re-surfacing of the entrance to be maintenance i.e. restoring to condition. Some would argue this is repairs: but it amounts to the same thing. The manhole at the entrance to our shared drive had been damaged by our tenant's enthusiastic driving in off the road in her 4x4. We got an estimate for brick weave the first few yards and re-cementing the manhole. The two dominant users agreed their 'reasonable' contribution having seen our quote from the groundsworker (the same one who had resurfaced the drive, at out expense, when we built a new house with the services digging up the drive.) We didn't seek a contribution from the tenant as there was no clause in the lease covering this. The next tenant's lease will have one!

dottiec1949
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Re: Right of way maintenance/encroachment

Post by dottiec1949 » Wed Jul 30, 2014 2:22 pm

Thanks for the very helpful responses.

I have contacted my solicitor and am awaiting his advice regarding writing to the two owners. The maintenance contribution responsibility is written in the title deeds to both properties. No parking is allowed on the right of way either and No 12 owner in particular allows visitors to park, sometimes overnight, which is all wear and tear in my book. When we resurface their end of the road, we shall take some minor measures to prevent this. When I previously mentioned the state of the road to No 12's owner, particularly to the entrance to her garage which forms quite a big pool during heavy rainfall she just stated she was happy with the current state and didn't want it "repairing". However, I would say it's unsafe, particularly for postmen, our visitors etc, who have to walk over it.

I find the whole business of trying to improve, safeguard, properly drain etc an absolute nightmare and am particularly surprised at the laxness of the statutory undertakers, considering the increase in flooding throughout the country. Everything seems to be so involved and no-one wants to have anything to do with it if it involves money changing hands, even though it creates an uplift in the value of their properties, and in the case of the authorities eases the flooding problem.

We soldier on!!

I will post the outcome of my dealings with my solicitor in the hope it will offer assistance to others.

Thanks again

MacadamB53
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Re: Right of way maintenance/encroachment

Post by MacadamB53 » Wed Jul 30, 2014 2:37 pm

Hi dottie,

I know exactly what you mean about folk not wanting to contribute - rather than because they can't afford it...

I will post the outcome of my dealings with my solicitor in the hope it will offer assistance to others.

thank you - I'm certain it will help the forum.

Kind regards, Mac

arsie
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Re: Right of way maintenance/encroachment

Post by arsie » Wed Jul 30, 2014 3:11 pm

dottiec1949 wrote:When I previously mentioned the state of the road to No 12's owner, particularly to the entrance to her garage which forms quite a big pool during heavy rainfall she just stated she was happy with the current state and didn't want it "repairing". However, I would say it's unsafe, particularly for postmen, our visitors etc, who have to walk over it.
Those whose sole criterion is "won't pay at any price" don't have a leg to stand on, in my view, unless the deeds give them explicit rights to control and agree when maintenance/repairs are needed. The - at least - implication in the deeds that we have is that the servient owner decides when maintenance is necessary. It will usually be self evident, as in your case. I like the way you have used the 'health and safety' card ;)

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