Repair of right of way to a safe standard

User avatar
petal
Posts: 320
Joined: Mon Oct 13, 2008 1:39 pm
Location: Bedfordshire

Repair of right of way to a safe standard

Post by petal » Mon Apr 25, 2016 11:42 am

Those of you who are long standing members of this forum may recall I had a right of way problem with my neighbours, which I won, and received a court order in my favour.

http://www.gardenlaw.co.uk/phpBB2/viewt ... =8&t=10012

A small piece of required background info first.

This action was against 4 members of the same family. Since then, I am good friends with two of the family members (two brothers), but the other two (a brother and a sister) would prefer we were dead.

Also since then, the two unpleasant family members and the two reasonable family members have completely fallen out, do not speak to each other and have divided the farm between them, with the ownership of the drive remaining with the unpleasant family members.

The drive has/is becoming dangerous with potholes and cracked concrete, and is without doubt in need of repair just to make it safe. My wife has already twisted her ankle on one occasion while walking down it in the dark. Currently he fills the potholes from time to time with road chippings, but these are quickly dispersed by the rain and vehicles driving over.

There are three residences that have right of way over this drive, myself, the reasonable family members and one other neighbour. There is absolutely no chance of communication between any of us and the owner of the drive, as there is such huge animosity, and he is still trying to get revenge on me for winning the legal case.

There is absolutely nothing in any of our deeds regarding maintaining or contributing to the cost of maintaining the ROW.

So my questions are,

What does the forum think the best and most positive way is to deal with this.

Should we ever reach the point that the owner repairs the drive, does he have an obligation to give us notice.

mr sheen
Posts: 2473
Joined: Fri Feb 27, 2009 2:33 pm

Re: Repair of right of way to a safe standard

Post by mr sheen » Mon Apr 25, 2016 11:49 am

The landowner doesn't have to do anything to the land. There is no compulsion for the servient tenement to maintain the land suitable for the dominant tenements.
The beneficiaries of the right of way have the right to maintain it suitable for the purpose for which they have rights to use it, but have no compulsion to do so.

So to answer your question...
If you find the surface isn't suitable for you to fully exercise your rights, then carry out some maintenance on it yourself or with the other dominant tenements if they wish to contribute. No one can be forced to do any work on it nor pay for any work on it. He who wants the work, pays for it.

In terms of health and safety concerns, they are also your issue as 'occupier' of the right of way. If you fail to maintain it in a safe manner then you leave yourself open for claims against you by invitees to your property.

User avatar
petal
Posts: 320
Joined: Mon Oct 13, 2008 1:39 pm
Location: Bedfordshire

Re: Repair of right of way to a safe standard

Post by petal » Mon Apr 25, 2016 12:26 pm

then carry out some maintenance on it yourself
We would be physically prevented from doing so, it has happened before. Also, as I have implied, to carry out a safe repair, would require closing the drive for a limited period of time while the concrete sets. To carry out a repair that was considered unsafe can expose you to further liability, like clearing snow.
If you fail to maintain it in a safe manner then you leave yourself open for claims against you by invitees to your property.
Do you have any evidence or documentation for that? There is no other access to our property other than the right of way. We are unable to erect warning signs, we cannot stand at the end of the drive all day and prevent uninvited visitors from using the drive.

Collaborate
Posts: 1822
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Repair of right of way to a safe standard

Post by Collaborate » Mon Apr 25, 2016 12:42 pm

mr sheen is correct in his advice.

If your neighbour stops the work from being undertaken you can go off to court again. I presume they had to pay your costs last time.

Anyway, I expect that if they physically prevent your agents entering the land to carry out the repairs they'll get no sympathy from a judge.

There is no magic wand.

Well, there is. It's called the court.

mr sheen
Posts: 2473
Joined: Fri Feb 27, 2009 2:33 pm

Re: Repair of right of way to a safe standard

Post by mr sheen » Mon Apr 25, 2016 12:57 pm

If this is the only access to your property then the post people etc etc have to use it, these people have a right to expect safe passage to your property and if you do not maintain the passage to your property they have the right to sue for any injury they sustain. They may or may not be successful. However since your wife has been injured due to the poor surface, you are now on notice that the surface has the potential to cause injury, this makes it more likely that they would be successful and presumably your insurance company would take over the case but would be unsympathetic that you did not carry out essential repairs and left them open to a claim.

Your only option is to carry out the repairs yourself (or along with neighbours who also have a ROW if they want to ) and if you are prevented from doing so, you will need to serve the nuisance causer. A good solicitor would have covered this in the first case by having it made clear that you have a right of way and right to maintain it such that you can exercise your rights and fully enjoy your property.

arborlad
Posts: 8399
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Repair of right of way to a safe standard

Post by arborlad » Mon Apr 25, 2016 1:01 pm

petal wrote:Those of you who are long standing members of this forum may recall I had a right of way problem with my neighbours, which I won, and received a court order in my favour.

http://www.gardenlaw.co.uk/phpBB2/viewt ... =8&t=10012 .

Entirely your own choice - but having linked to that thread in the past as an exemplar of one thread for one problem............. :)
arborlad

smile...it confuses people

User avatar
petal
Posts: 320
Joined: Mon Oct 13, 2008 1:39 pm
Location: Bedfordshire

Re: Repair of right of way to a safe standard

Post by petal » Mon Apr 25, 2016 1:30 pm

Entirely your own choice - but having linked to that thread in the past as an exemplar of one thread for one problem............. :)
What is my choice? How is that helpful?

You cannot win on this forum, you either give people all the facts and background and get criticised, or you do not give enough and get criticised.
Last edited by petal on Mon Apr 25, 2016 1:49 pm, edited 1 time in total.

User avatar
petal
Posts: 320
Joined: Mon Oct 13, 2008 1:39 pm
Location: Bedfordshire

Re: Repair of right of way to a safe standard

Post by petal » Mon Apr 25, 2016 1:32 pm

Collaborate wrote:mr sheen is correct in his advice.

If your neighbour stops the work from being undertaken you can go off to court again. I presume they had to pay your costs last time.

Anyway, I expect that if they physically prevent your agents entering the land to carry out the repairs they'll get no sympathy from a judge.

There is no magic wand.

Well, there is. It's called the court.
Yes of course there is always the courts, and also there is always the hospitals, however, I was looking for help in trying to avoid both, hence asking the questions
What does the forum think the best and most positive way is to deal with this.

Should we ever reach the point that the owner repairs the drive, does he have an obligation to give us notice.
Which no seems to want to address.

arborlad
Posts: 8399
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Repair of right of way to a safe standard

Post by arborlad » Mon Apr 25, 2016 2:23 pm

petal wrote:
Entirely your own choice - but having linked to that thread in the past as an exemplar of one thread for one problem............. :)
What is my choice? How is that helpful?

You cannot win on this forum, you either give people all the facts and background and get criticised, or you do not give enough and get criticised.

Oh dear - it was intended as a compliment!!

Taken from here: http://www.gardenlaw.co.uk/phpBB2/viewt ... al#p171480



arborlad wrote:Petal's thread is also noteworthy in how to get the best out of this forum. It lasted almost two years, 35 pages long and everything connected with the problem, contained within that thread - not fragmented amongst several different threads.
arborlad

smile...it confuses people

cleo5
Posts: 341
Joined: Mon May 18, 2015 12:33 pm

Re: Repair of right of way to a safe standard

Post by cleo5 » Mon Apr 25, 2016 2:29 pm

You could perhaps fill in the potholes with a couple of bags of ready -to- use tarry/ stone mix stuff. We used to do that with our drive. The do it yourself shops stock it. Used to be £2.00 a bag- probably a lot more now. It sets quite quickly. If the potholes are too big of course then you would need a proper contractor.
Could it be done late one evening perhaps or when the" objectionables "are out or away?
Just go ahead and if he causes trouble call the police with "there is likely to be a breach of the peace."

User avatar
petal
Posts: 320
Joined: Mon Oct 13, 2008 1:39 pm
Location: Bedfordshire

Re: Repair of right of way to a safe standard

Post by petal » Mon Apr 25, 2016 2:38 pm

arborlad wrote:
petal wrote:
Entirely your own choice - but having linked to that thread in the past as an exemplar of one thread for one problem............. :)
What is my choice? How is that helpful?

You cannot win on this forum, you either give people all the facts and background and get criticised, or you do not give enough and get criticised.

Oh dear - it was intended as a compliment!!

Taken from here: http://www.gardenlaw.co.uk/phpBB2/viewt ... al#p171480



arborlad wrote:Petal's thread is also noteworthy in how to get the best out of this forum. It lasted almost two years, 35 pages long and everything connected with the problem, contained within that thread - not fragmented amongst several different threads.
Please accept my genuine apology for misinterpreting your comment, I did not understand what you were referring to as it did appear a bit out of context. I accept it in the spirit that it was meant.
Last edited by petal on Mon Apr 25, 2016 2:50 pm, edited 2 times in total.

User avatar
petal
Posts: 320
Joined: Mon Oct 13, 2008 1:39 pm
Location: Bedfordshire

Re: Repair of right of way to a safe standard

Post by petal » Mon Apr 25, 2016 2:46 pm

cleo5 wrote:You could perhaps fill in the potholes with a couple of bags of ready -to- use tarry/ stone mix stuff. We used to do that with our drive. The do it yourself shops stock it. Used to be £2.00 a bag- probably a lot more now. It sets quite quickly. If the potholes are too big of course then you would need a proper contractor.
Could it be done late one evening perhaps or when the" objectionables "are out or away?
Just go ahead and if he causes trouble call the police with "there is likely to be a breach of the peace."
Thanks for your reply.

They are such miserable people they never go anywhere, there is always one of them there, and they have CCTV everywhere.

As I mentioned earlier, I am of the opinion that if I were to make a less than adequate repair, then should that result in a mis-hap, then I could be liable, and he would take great pleasure in making sure that I was. The drive is quite busy most of the time, as it is access to stables, so it would have to be really quick setting, like instant.

As for the police, they are worse than useless, even when the NFH put me on the operating table for 2 hours, they did absolutely nothing. I will give the Chief Constable her due, she did have my DNA and finger prints removed from the database, but she has gone now.

Collaborate
Posts: 1822
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Repair of right of way to a safe standard

Post by Collaborate » Mon Apr 25, 2016 2:53 pm

You are in serious danger of over-thinking things.

1. You have the legal right to enter the property to effect repairs. So go ahead and do it.

2. If your neighbours deny you that legal right, you can enforce it through the courts.

3. You want someone to suggest a 3rd way. There isn't one.

You asked if your neighbour is obliged to give you notice. There's nothing to say that he does. That works both ways.

As you can't make them have the drive repaired, and you're not speaking to them, either give them notice in writing or don't. It's up to you. But it would be polite of you to do so.

Your position in law though is very clear.

stufe35
Posts: 823
Joined: Mon Nov 05, 2012 3:06 pm

Re: Repair of right of way to a safe standard

Post by stufe35 » Mon Apr 25, 2016 3:00 pm

Collaborate,
I think one of the problems is that the right of way will have to be temporarily closed in order to effect the repairs.
As far as I know there is no legal mechanism to allow anyone to do this...other than mutual agreement by all other users...which Petal is suggesting just isn't going to happen.
The owner may even physically try to stop the works or sabotage them when they are complete ?
So practical suggestions for a way forward ?
Last edited by stufe35 on Mon Apr 25, 2016 3:08 pm, edited 1 time in total.

MacadamB53
Posts: 6646
Joined: Sun Dec 09, 2012 11:13 pm
Number of Posts per Page: 100
Number of topics per page: 50

Re: Repair of right of way to a safe standard

Post by MacadamB53 » Mon Apr 25, 2016 3:07 pm

Hi petal,

The drive is quite busy most of the time, as it is access to stables, so it would have to be really quick setting, like instant.

nah - you just erect a temporary barrier with "temporary road closure" signs.

"best" thing to do is forewarn the users.

Kind regards, Mac

Post Reply