Private access road maintenance - additional property

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andy_nd
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Private access road maintenance - additional property

Post by andy_nd » Fri Feb 16, 2018 10:13 am

Hoping someone can help with some advice here!

I live in a leasehold property, with a private access road that runs across the freeholder's land. The access road is shared with one neighbour, is a public bridleway, and is also used by a tenant farmer to access his fields. My lease contains a covenant to maintain the road:
To make up the access road to a reasonable standard of repair and condition as required by the Local Authority and thereafter to contribute to the costs and expenses of maintaining and repairing said access road according to user
The freeholder has now started building another property, which will also require use of the access road. Historically he has flat refused to contribute financially to the upkeep and maintenance of the road, and we are concerned that the additional traffic on the road from new neighbours will mean we need to perform more frequent maintenance.

What research I have been able to do myself indicates that ‘according to user’ means the maintenance and repair should be split between the properties accessed the road, and any new property would have to pay their fair share (so we now split the costs three ways rather than two). However, with it being the freeholder's property, I'm not sure how this would play out when he creates the lease for the new property and/or if he decided to keep ownership and rent it out. Really keen to understand my situation here, and if we need to seek professional help, what type of legal professional we should be looking to!

As an aside, the access road runs up a steep hill and suffers from occasional (three times in the past 2 years) landslip when the weather is very bad. We are increasingly concerned that the structure of the hillside is becoming weakened due to poor drainage and general maintenance of the surrounding land. Since our covenant refers only to the road, does anyone have any experience with the situation where ‘our’ road (that is, the road we must pay to maintain) is damaged by ‘his’ hillside? We believe that the cost to shore up the surrounding land so as to properly protect the access road against collapse could run to 6 figures, so if there is an opportunity to negotiate with the freeholder, it feels prudent that we would address this concern at the same time. Again, it's very unclear what our position would be here..

Thanks in advance!

Andy

Collaborate
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Re: Private access road maintenance - additional property

Post by Collaborate » Fri Feb 16, 2018 3:59 pm

Does the lease mention anything about obligations on the freeholder?

andy_nd
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Re: Private access road maintenance - additional property

Post by andy_nd » Sat Feb 17, 2018 12:46 pm

Not relating to maintenance, no. Extracts from the lease relating to the access road include:
... the Landlord hereby demises unto the Tenant the Property as the same is more particular described and referred to in the Schedule hereto TOGETHER WITH a right of way in common with the Landlord and all others entitled over and along the road or track from the Property to the boundary of the Landlord's Property as it meets with (the public highway) shown on Plan No. 2 annexed hereto ...
THE Tenant heerby covenants with the Landlord and where such covenants are restrictive in nature with the intent and so as to bind the property into whosoever hands the same may come as follows:-
  • To make up the access toad to a reasonable standard of repair and condition as required by the Local Authority and thereafter to contribute to the costs and expenses of maintainig and repairing the siad access road according to user
  • To comply with the Landlord's requirements from time to time as to the opening or closing of any gates on the access road
  • Not to obstruct the road
  • To pay a fair proportion to be determined by the Surveyor for the time being on the Landlord whose determination shall be binding upon the Tenant of the expenses payable in respect of contructing repairing rebuilding and cleansing all party walls fences sewers drains gutters pipes roads pavements and other things the use of which is common to the demised premises and to the Landlord's adjoining property ...
This is where I'm unclear the impact of any future development on our obligations. Indeed, given the current uses extend past access to mine and my neighbour's properties, it's not even clear whether the landlord and farmer shouldn't be contributing already?


THE Landlord hereby covenants with the Tenant as follows:-
  • Not to obstruct the access road shown on the plan and for the avoidance of doubt a gate or grid shall not form an obstruction
My optimistic interpretation of the final quoted section is that where 10 tons of his soil ends up on our road, that constitutes an obstruction, but I suspect that is a highly optimistic view to take..

Thanks again for any assistance!

Collaborate
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Re: Private access road maintenance - additional property

Post by Collaborate » Sun Feb 18, 2018 8:28 am

That is a positive covenant, so can only bind the original purchaser. Usually on sale the buyer will give an indemnity to the seller to observe and perform all the positive covenants. If you are not the original purchaser, how long ago was the property sold, and is the original purchaser still around?

andy_nd
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Re: Private access road maintenance - additional property

Post by andy_nd » Sun Feb 18, 2018 9:08 am

We are the third owners, bought in 2016. The original lease is from 1986, and I believe the original purchaser is now deceased. We never received an indemnity from the previous owners to that extent, and there is nothing in the pack from them indicating they had anything from the original owner either.

Where would the leave us in the event of maintenance being need? If we are not required to contribute then does it fall to our neighbour (who are the original purchaser of their property)? The freeholder? It is the only way to access our property..

I guess it ties back to my original point, in the event there is no covenant (or other requirement) on the new property to contribute (perhaps because the freeholder retains ownership, or because it isn't written into any new lease), who would pick up the tab for any repairs?

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