Private houses and farm access road- where do i stand?
Discussion
First off, apologies for being a long time lurker and not a big poster.
this may also be in the wrong forum....
however,
i am looking for advice on an access road to my property which is also used by the farmer.
there are 6 privately owned properties at the end of a 1.1km stretch of road. our deeds state we have a lifetime right of access over the land that we have to maintain this road to a highways standard- we are all happy to do this.
the problem we have is that the farmer also uses this road to access his fields. his tractors and sheep transporters have damaged the road quite considerably during the recent extreme weather.
we have received quotes for getting the road dug up and re-surfaced to a cost of £35k. we are happy to have the work done but are concerned that the road breaks up and we have to do it all again in the near future- the farmer will not be contributing to the cost of this (as he leases the fields) although the landowner has offered to pay an equal share.
please can someone advise on where to start on finding out about where we stand legally?
to re-iterate; we are happy to pay for the work to be carried out and are not trying get out of anything however we also want things to be fair for everyone. (our cars do not cause the same amount of damage as a double sheep transporter and tractor carrying haybales)
all comments in the usual ph banter greatfully received.
regards,
ged
this may also be in the wrong forum....
however,
i am looking for advice on an access road to my property which is also used by the farmer.
there are 6 privately owned properties at the end of a 1.1km stretch of road. our deeds state we have a lifetime right of access over the land that we have to maintain this road to a highways standard- we are all happy to do this.
the problem we have is that the farmer also uses this road to access his fields. his tractors and sheep transporters have damaged the road quite considerably during the recent extreme weather.
we have received quotes for getting the road dug up and re-surfaced to a cost of £35k. we are happy to have the work done but are concerned that the road breaks up and we have to do it all again in the near future- the farmer will not be contributing to the cost of this (as he leases the fields) although the landowner has offered to pay an equal share.
please can someone advise on where to start on finding out about where we stand legally?
to re-iterate; we are happy to pay for the work to be carried out and are not trying get out of anything however we also want things to be fair for everyone. (our cars do not cause the same amount of damage as a double sheep transporter and tractor carrying haybales)
all comments in the usual ph banter greatfully received.
regards,
ged
There are a lot of very badly maintained - sometimes impassable - public rights of way, so I doubt there's a hige legal precedent here. If it's a regularly used right of way to your house I'd say you're in a fairly strong position.
That said, I don't quite understand the question - is there some opposition to the work you're proposing to do (and finance) or are you looking at ways of lessening future damage?
I guess the problem is that the land can change ownership - the last 30 years of damage may have been done under a different landlord to the present incumbent (is that the right word?
) so it's a little harsh to suggest he's liable. Conversely, it's a little unfair to ask him to pay pre-emptively for the next 30 years of upkeep when neither you nor he might be on that site in the future.
Also, it's worth looking at the road itself. I grew up in a farming area with lots of very narrow lanes used by tractors, milk lorries and cattle transporters. The only ones that suffered any significant damage were where the surface wasn't ideal in the first place - excessive camber, subsidence etc.
That said, I don't quite understand the question - is there some opposition to the work you're proposing to do (and finance) or are you looking at ways of lessening future damage?
I guess the problem is that the land can change ownership - the last 30 years of damage may have been done under a different landlord to the present incumbent (is that the right word?
) so it's a little harsh to suggest he's liable. Conversely, it's a little unfair to ask him to pay pre-emptively for the next 30 years of upkeep when neither you nor he might be on that site in the future.Also, it's worth looking at the road itself. I grew up in a farming area with lots of very narrow lanes used by tractors, milk lorries and cattle transporters. The only ones that suffered any significant damage were where the surface wasn't ideal in the first place - excessive camber, subsidence etc.
I have a friend who shares a farm drive with 2 other houses and the farm. Their road was resurfaced at a cost of £16,000 a couple of years ago. They had no legal arrangement about who should pay what but the farmer agreed that as his machinery caused more damage than their cars, he would pay £10,000 and they would each pay £2,000.
thanks for the replies chris and freddie.
chris, i can see where my question may be a bit vague but i guess im looking for some reassurance that once the road is re-laid that the farmers machinery wont tear it up again. the contractors will only guarantee their work for 1 year. there is no opposition to the work getting done but i would like to lessen any potential future damage to my wallet!
(each house has 2 cars and we all travel the road at least twice a day. the farmer checks on his sheep daily- usually in a 4x4 but during the year the lorries and tractors visit regularly- approx 3 times a week.)
i was also thinking along the lines of freddie where i would like the landowner to pay a larger share of the costs. for example; 50% plus the rest shared out amongst the other houses.
as per the deeds, we have a permanent right of access over the landowners land. we also must maintain the road to a highways standard. the farmer leases the fields from the landowner and has a right of access over our road and is required to make repairs where 'significant' damage has occured.
of course, this can be subjective and at the moment we maintain a good relationship with the farmer and landowner and would like this to continue.
bearing the above; can anyone tell me how long should we reasonably expect the road to survive once the work has been done? (excluding another winter like this one)
i am keen to know if there is any legal standpoint for when i approach the landowner to discuss him contributing more?
or, do we just have to suck it up and pay for repairs where we cant prove how damage was caused?
thanks
chris, i can see where my question may be a bit vague but i guess im looking for some reassurance that once the road is re-laid that the farmers machinery wont tear it up again. the contractors will only guarantee their work for 1 year. there is no opposition to the work getting done but i would like to lessen any potential future damage to my wallet!
(each house has 2 cars and we all travel the road at least twice a day. the farmer checks on his sheep daily- usually in a 4x4 but during the year the lorries and tractors visit regularly- approx 3 times a week.)
i was also thinking along the lines of freddie where i would like the landowner to pay a larger share of the costs. for example; 50% plus the rest shared out amongst the other houses.
as per the deeds, we have a permanent right of access over the landowners land. we also must maintain the road to a highways standard. the farmer leases the fields from the landowner and has a right of access over our road and is required to make repairs where 'significant' damage has occured.
of course, this can be subjective and at the moment we maintain a good relationship with the farmer and landowner and would like this to continue.
bearing the above; can anyone tell me how long should we reasonably expect the road to survive once the work has been done? (excluding another winter like this one)
i am keen to know if there is any legal standpoint for when i approach the landowner to discuss him contributing more?
or, do we just have to suck it up and pay for repairs where we cant prove how damage was caused?
thanks
Can the landowner, who lets the fields to the farmer, either seek to recover a contribution from the farmer or adjust the rental terms so that he is held liable for damage caused by his stock or equipment?
As you say, it's not fair that you resurface the road for the farmer to then ruin it and not be held liable for that damage.
As you say, it's not fair that you resurface the road for the farmer to then ruin it and not be held liable for that damage.
You need a lawyer and you need to provide more information.
I am not sure I fully understand the facts of your situation but assume they are roughly thus.
(1) You own some land.
(2) Access to the land is obtained over a roadway which belogs to a third party.
(3) You have a right of way over the roadway
(4) The terms of the right of way include an obligation on your part to repair or to contribute to the cost of repair of the roadway, the standard being that of an adopted highway.
(5) A farmer uses the roadway.
(6) The roadway has become damaged.
My first question is: what right does the farmer have to use the roadway? is he the third party who owns it (i.e. is it within his lease)? or does he have a right of way over it as well?
My next question is: what are the precise terms of the grant? is there an obligation on the part of the owner of the roadway to repair and keep in repair which corresponds to your obligation to contribute to the cost of repairs?
Then: how bad is the damage? is it so bad that the roadway is obstructed? is it the result of ordinary wear and tear? or is it the result of excessive user or positive acts of damage?
As a general rule, absent any provisions dealing with repair, there is no liability on the owner of the roadway to repair ordinary wear and tear but there is nothing to stop the beneficiary of the right of way from repairing the roadway at his own expense.
Where there are particular provisions dealing with repair, the person who is obliged to repair can be forced to do so and the person (or people) who is obliged to pay likewise can be forced to do so.
In your case, the farmer's liability likely depends upon (1) his rights and liabilities and (2) the extent and nature of his user. It is entirely possible that he may have the right (whether as owner or as the holder of a right of way) to use the roadway with his trucks without liability to repair.
People find it very difficult to get it into their heads that a right of way is somewhat less than they might expect. In particular, a right of way almost always involves nothing more than a right to share the use of some land in a very limited respect: almost never will it be exclusive. What you make of the way usually is up to you, not the grantor.
I am not sure I fully understand the facts of your situation but assume they are roughly thus.
(1) You own some land.
(2) Access to the land is obtained over a roadway which belogs to a third party.
(3) You have a right of way over the roadway
(4) The terms of the right of way include an obligation on your part to repair or to contribute to the cost of repair of the roadway, the standard being that of an adopted highway.
(5) A farmer uses the roadway.
(6) The roadway has become damaged.
My first question is: what right does the farmer have to use the roadway? is he the third party who owns it (i.e. is it within his lease)? or does he have a right of way over it as well?
My next question is: what are the precise terms of the grant? is there an obligation on the part of the owner of the roadway to repair and keep in repair which corresponds to your obligation to contribute to the cost of repairs?
Then: how bad is the damage? is it so bad that the roadway is obstructed? is it the result of ordinary wear and tear? or is it the result of excessive user or positive acts of damage?
As a general rule, absent any provisions dealing with repair, there is no liability on the owner of the roadway to repair ordinary wear and tear but there is nothing to stop the beneficiary of the right of way from repairing the roadway at his own expense.
Where there are particular provisions dealing with repair, the person who is obliged to repair can be forced to do so and the person (or people) who is obliged to pay likewise can be forced to do so.
In your case, the farmer's liability likely depends upon (1) his rights and liabilities and (2) the extent and nature of his user. It is entirely possible that he may have the right (whether as owner or as the holder of a right of way) to use the roadway with his trucks without liability to repair.
People find it very difficult to get it into their heads that a right of way is somewhat less than they might expect. In particular, a right of way almost always involves nothing more than a right to share the use of some land in a very limited respect: almost never will it be exclusive. What you make of the way usually is up to you, not the grantor.
Edited by r129sl on Wednesday 31st March 14:43
Chris71 said:
Also, it's worth looking at the road itself. I grew up in a farming area with lots of very narrow lanes used by tractors, milk lorries and cattle transporters. The only ones that suffered any significant damage were where the surface wasn't ideal in the first place - excessive camber, subsidence etc.
I'd agree with this bit. It sounds as though the original road wasn't built to a standard sufficient to cope with heavy vehicles.My suggestion would be to get the road contractors to provide two quotes - one for a road which would be good for X number of years of light domestic vehicle traffic, and another for the same number of years with truck and tractor traffic.
Once you've got that, and assuming there's a significant difference, take it to the farmer and the landowner and point out your problem.
thanks for the replies. sorry its taken so long to get back to this but we have had 7 quotes for the work to be done and numerous residents meetings in between trying to make a decision.
we are close to falling out with the neighbours over this which is certainly not what anybody wants.
we are in a position where there are two differing ideas; one being that we spend money now and do a full repair and the other being minimum repairs and setting up a maintenance fund for the future.
r129sl: you are right in assuming that the farmer has no obligation to contribute to the cost of road repairs as it is within his lease that he has a right of way over it.
we appear to have no grounds for asking the farmer or the landowner to contribute but as a goodwill gesture the landowner is offering to pay a one off equal share of the repairs.
my experience of solicitors in the past have not been positive. how do i explore the deeds further without it costing more than whats needed to repair the road in the first place?
would a solicitor or lawyer have a look at my deeds for a fixed sum and advise on where i stand?
can anyone recommend a solicitor in the stirling area?
thanks again,
Ged
we are close to falling out with the neighbours over this which is certainly not what anybody wants.
we are in a position where there are two differing ideas; one being that we spend money now and do a full repair and the other being minimum repairs and setting up a maintenance fund for the future.
r129sl: you are right in assuming that the farmer has no obligation to contribute to the cost of road repairs as it is within his lease that he has a right of way over it.
we appear to have no grounds for asking the farmer or the landowner to contribute but as a goodwill gesture the landowner is offering to pay a one off equal share of the repairs.
my experience of solicitors in the past have not been positive. how do i explore the deeds further without it costing more than whats needed to repair the road in the first place?
would a solicitor or lawyer have a look at my deeds for a fixed sum and advise on where i stand?
can anyone recommend a solicitor in the stirling area?
thanks again,
Ged
Check the actual terms of the right of way.
Is the maintenance contribution split equally or os it 'a fair proportion according to the cost of use'
if its the latter the owner of the farmers field should be paying more if its his tenant who is using the road intensively and with heavy equipment.
Is the maintenance contribution split equally or os it 'a fair proportion according to the cost of use'
if its the latter the owner of the farmers field should be paying more if its his tenant who is using the road intensively and with heavy equipment.
Obtain your title details. This is easy.
Go to the Land Registry website (I think it is www.landregistry.gov.uk), click on "Find a property" from the list on the left-hand side and enter your own details (or search using a map). Then purchase the "Title register" and "Title plan" for a total of £8. The terms of your right of way ought to be contained somewhere in the document that results. If you're having difficulty, post it on here suitably anonymised.
Obviously I know nothing about this case. But... most rights of way are just that, a right to come and go over someone else's land. So long as the way is not positively obstructed, deterioration in the way is something the dominant user (you) just has to put up with. Usually the dominant user is perfectly within his rights to repair the way but he must do so at his own expense. Likewise the servient user (the farmer). Usually he too can repair the way but again at his own expense.
In some few cases, user of the way is subject to a liability to repair or pay for all of or a proportion of the repair and maintenace. This can be an onerous liability on the dominant user.
Almost never is the liability to repair enforceable at the whim of the dominant user at the expense of the servient user. The reason for this is obvious when you think about it: the servient user--or his predecessor--was the grantor of the right; and who ever would grant a right on terms so hostile to himself?
The key is to find the words of grant.
Go to the Land Registry website (I think it is www.landregistry.gov.uk), click on "Find a property" from the list on the left-hand side and enter your own details (or search using a map). Then purchase the "Title register" and "Title plan" for a total of £8. The terms of your right of way ought to be contained somewhere in the document that results. If you're having difficulty, post it on here suitably anonymised.
Obviously I know nothing about this case. But... most rights of way are just that, a right to come and go over someone else's land. So long as the way is not positively obstructed, deterioration in the way is something the dominant user (you) just has to put up with. Usually the dominant user is perfectly within his rights to repair the way but he must do so at his own expense. Likewise the servient user (the farmer). Usually he too can repair the way but again at his own expense.
In some few cases, user of the way is subject to a liability to repair or pay for all of or a proportion of the repair and maintenace. This can be an onerous liability on the dominant user.
Almost never is the liability to repair enforceable at the whim of the dominant user at the expense of the servient user. The reason for this is obvious when you think about it: the servient user--or his predecessor--was the grantor of the right; and who ever would grant a right on terms so hostile to himself?
The key is to find the words of grant.
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