Q&As

A farm cottage conveyed for residential purposes off from the original farm has the benefit of a right of way for all purposes over the footpath (access road) on the adjoining farm to access the cottage. The owner of the farm is under obligation to maintain the road but claims that it is only required to do so to ‘agricultural standard’ and not to a higher standard sufficient to enable normal vehicle use. Is there any authority on what the standard of repair should be?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 04/01/2018

The following Property Q&A Produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • A farm cottage conveyed for residential purposes off from the original farm has the benefit of a right of way for all purposes over the footpath (access road) on the adjoining farm to access the cottage. The owner of the farm is under obligation to maintain the road but claims that it is only required to do so to ‘agricultural standard’ and not to a higher standard sufficient to enable normal vehicle use. Is there any authority on what the standard of repair should be?

In the absence of any express obligation to repair, the general rule is that neither the dominant or the servient owner (see Jones v Price at [631] and Duke of Westminster v Guild at [700F]) is under any obligation to repair the right of way. Taylor v Whitehead [1781] 2 Doug KB 745 (not reported by LexisNexis®) and Ingram v Morecraft at [51–52] [1863] 33 Beav 49 (not reported by LexisNexis®) suggest that as a matter of common law, the person who has the use of the thing ought to repair it so that if the servient owner wants the way repaired he should do so himself. The dominant owner will have ancillary to the right, a right to enter onto the land and repair the way including upgrading and improving it that is reasonably necessary for the enjoyment of the easement granted. He will not be able to recover the costs of so doing unless he was abating a nuisance or the servient owner was in default of an obligation to repair.

Next, we turn to the situation where there is an express obligation on the part of the servient owner to carry out repairs to the way. A covenant to repair is a positive covenant and so, will not bind a successor in title to the original covenantor unless he or she has

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