Right of way -subject to a right for the Seller to divert.

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Anon
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Right of way -subject to a right for the Seller to divert.

Post by Anon » Sat Nov 01, 2014 7:03 pm

While browsing I came across a property for sale with:

"A full right of way will be granted to the buyer of the property for all purposes and at all times, subject to a right for the Seller to divert as necessary, and with costs of repairs and maintenance recovered on a fair and reasonable basis."

Has anyone come across the "subject to a right for the Seller to divert as necessary" condition before.

Anon.

pilman
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Re: Right of way -subject to a right for the Seller to diver

Post by pilman » Sun Nov 02, 2014 2:48 pm

Yes, I have.

ukmicky
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Re: Right of way -subject to a right for the Seller to diver

Post by ukmicky » Sun Nov 02, 2014 4:36 pm

I would have thought as far as the law would be concerned that would be a positive burden that would not pass on to successors in title and would only burden the original covenantor.
Any information provided is not legal advice and you are advised to gain a professional opinion

pilman
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Re: Right of way -subject to a right for the Seller to diver

Post by pilman » Mon Nov 03, 2014 1:01 am

FIRST SCHEDULE
Rights Granted
The Property is transferred together with:-
(A) A right ("the original right of way") for the Buyer their successors in title and all persons authorised by them (in common with all other persons entitled to a similar right) at all times
with or without vehicles for all purposes in connection with the use and enjoyment of the Property to pass and repass over and along the track shown coloured brown on the plan numbered 1annexed hereto leading from the Property to the Main Road subject to
the following conditions:-
(1) The Seller or his successors in title may at any time up to one year before expiry of the Perpetuity Period serve notice ("Notice") on the Buyer or their successors in title to terminate
the original right of way referred to herein provided that:
(a) The Notice is accompanied by a plan showing the proposed route for an alternative right of way ("the alternative right of way") between the Property and the Main Road
(b) Such proposed route of the alternative right of way is not unreasonably less convenient than the original right of way referred to herein (having regard in particular to any proposals for building farming operations or other development in respect of the Farm or any adjoining or neighbouring property)
(c) The physical state of the alternative right of way at the date of service is not unreasonably inferior to the physical state of the original right of way
(d) The original right of way shall terminate and the alternative right of way shall commence four weeks after service of the Notice unless before expiry of that period a Counter-Notice is served on
the Owner (or his successors in title as appropriate) requiring the matters referred to in Clause 1(b) and (c) above be determined under Clause 3 below. If the award of the arbitrator shall uphold
the existence of the conditions in said paragraphs 1(b) and (c) above then the original right of way shall terminate and the alternative right of way shall commence four weeks after the award but if the award shall not uphold the existence of conditions set out in the said paragraphs 1(b) and (c) above the Notice shall lapse but the Owner or their successors in title may at any time up to six months before the expiry of the Perpetuity Period serve a fresh Notice.
(e) In the event that the original right of way is deviated with these conditions the alternative right of way shall be subject to the same liability in respect of the upkeep maintenance and repair of the same as set out in paragraph 2 below
(f) If the Notice served takes effect a Memorandum to such effect shall be endorsed on the title of the Buyer and the parties will enter into such a Supplemental Deed of Grant as may be required to
give effect to the same
(2) The right to use the original right of way is subject to the payment of a fair and proper proportion of the expense from time to time of maintaining and repairing the surface of the track such payments to be made in accordance with the proportion of user and to be agreed between the parties having the use of the same and if the amount of payment is not agreed between the parties the same will be determined in accordance with Clause 3 below
(3) Any dispute arising in respect of clauses 1 and 2 above shall be settled by a single arbitrator agreed on by the parties or if not agreed within four weeks of one party nominating in writing a
proposed Arbitrator appointed on the application of either part by the President of the time being of the Law Society for England and Wales
(B) The right for the Buyer and their successors in title together with the Owner and all other persons entitled to the like right to use for all proper purposes connected with the Property any sewers drains watercourses pipes drains cables wires or other channels or conductors now laid in under or over the Farm or any part of it together with the right to run and pass sewers water gas or
electricity through and along the same with power on reasonable notice (except in the case of emergencies) to enter the Farm for the purpose of repairing renewing maintaining inspecting or cleansing the same and all such sewers drains watercourses pipes cables wires or other channels or conductors shall be maintained at the joint and equal expense of the persons entitled to use them. The rights referred to in this clause (B) shall be exercised causing as little damage and disturbance as possible and making good any damage so caused as soon as reasonably possible
That was recorded in the register of title when a farmhouse was sold separately from the remainder of the farmland, that was sold to a local farmer who intended to continue it in agricultural use.

It appears that the way that the clauses were set out will allow the servient landowner to compel any successor in title of the farmhouse to agree to use the new route once it is set out in a manner that satisfies the conditions listed.

In this case it also seems to impose an obligation on the owner of the dominant land to pay maintenance costs, even if that owner was a successor in title to the original buyer.

In this instance I cannot see that this is a positive covenant that cannot be imposed on the person owning the dominant land.

This seems to be a grant of a conditional right of way, with one of the conditions being that agreement to a new route is implied and a second condition to pay to maintain the road at all times in the future.

That seems to fit in with the legal doctrine of "no benefit without the burden" which would seem to run with the land rather than the original parties to the sale.

ukmicky
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Re: Right of way -subject to a right for the Seller to diver

Post by ukmicky » Tue Nov 04, 2014 2:01 am

The covenant and the easement are two different things even when written jointly and the easement which is attached to the land is not dependant on the dominate owner abiding by the terms of the covenant. The easement, the current ROW can survive without the covenant.

The land owner owns the burden of the covenant .

The land owns the easement right which the landowner has a right to benefit from if he wishes to abide by the covenant .



This covenant is positive in nature . Its a personal contact and therefore as you suggest can only be enforced under the no benefit without burden doctrine. The doctrine allows a personal contract to burden a successor in title who was not party to the original contract. The scope of the doctrine is however very narrow and has never been used in a situation like this. It would require a court to widen the scope of the doctrine and move onto a new path broadening its uses ,something which the courts have already said they are not in favour of doing . It would also mean a court under the doctrine moving way from the previous monetary solution to satisfy the burden.

Even if they did decide to widen the scope it still may not help this situation because as he was not party to the original contract the law gives him a get out .

Under the rulings before it gets to court he has to be given the choice of rejecting the terms of the covenant by rejecting the benefit.

However If he chose to reject the benefit the covenant can no longer be enforced against him and the easement which is treated separately to the covenant still lives on in its current form for future owners of his land to benefit from if they wish accept the burden.

There is also another outcome if he refuses to be adhere to the terms of the covenant contract and still use the easement where a court orders him to pay out compensation rather than moving the right of way.,
Any information provided is not legal advice and you are advised to gain a professional opinion

pilman
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Re: Right of way -subject to a right for the Seller to diver

Post by pilman » Tue Nov 04, 2014 10:18 am

For the benefit of Anon or anyone else interested in how such a diversion can be made, it should be noted that the wording used to describe the various options available to the servient land-owner appear to be carefully considered so that it does not require the agreement of the buyer to the terms set out.

That is why I think ukmicky's post cannot be the correct interpretation of this particular quoted right of way.

The current route extends for a distance of over half a mile from the road to the farmhouse, so the idea that there would ever be a choice of not using that road is completely unrealistic.
In the same way that the choice about using the services that are also referred to in clause B is also unrealistic.

There is no covenant to pay maintenance as such, each subsequent buyer will be purchasing a conditional legal interest over land owned by the original seller or his successor in title.
The fact that those clauses were set out in the register of title means that each buyer will be fully aware of that fact, as well as the fact that without such easements the property would be uninhabitable.

I don't think a theoretical posting about what a court may or may not decided in such a case is helpful, as on the facts it would be a very desperate owner who decided that paying the costs associated with the conditional easements was not something to be contemplated.

It would also not be prudent for each owner of the dominant land to fail to include an indemnity clause in every sale, so that the new buyer agreed to abide by the terms expressed in the original deed. That way there would always be privy of contract between the servient and dominant land-owners.

ukmicky
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Re: Right of way -subject to a right for the Seller to diver

Post by ukmicky » Tue Nov 04, 2014 8:53 pm

subject to a right for the Seller to divert as necessary
This is the part I am taking about ,are you saying this part can be enforced against successors in title.
Any information provided is not legal advice and you are advised to gain a professional opinion

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