Q&As

The owner of an estate road is under obligation to maintain the road. Owners of the plots on the estate have a right to use the road but the transfers of the plots did not provide for any of the plot owners to contribute to maintenance. Is there any case law which would support the proposition that a plot owner exercising rights of way should be liable to contribute towards the expenses of maintaining the road in the absence of a positive covenant to do so?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 15/08/2018

The following Property Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • The owner of an estate road is under obligation to maintain the road. Owners of the plots on the estate have a right to use the road but the transfers of the plots did not provide for any of the plot owners to contribute to maintenance. Is there any case law which would support the proposition that a plot owner exercising rights of way should be liable to contribute towards the expenses of maintaining the road in the absence of a positive covenant to do so?

A right of way is an easement for the benefit of one plot of land (the dominant tenement) over another plot of land (the servient tenement) and is commonly created by deed, though can arise in other ways. It is usual upon the grant of an express easement for covenants to be put in place in respect of the maintenance of the right of way (particularly where this is a road) and in respect of the payment of the costs of that maintenance. A landowner subject to a right of way is not in general obliged to maintain the land subject to the right of way, but action or inaction by the landlord in failing to allow the right of way to be exercised, for example due to deterioration, may be actionable. In this scenario it appears that the owner of the estate is under a positive obligation to maintain the road.

Where there is no covenant requiring the payment of expenses by the dominant tenements, the usual position is that contributions towards maintenance will be voluntary, and there is no right to demand such contributions.

In Halsall v Brizell, the ‘benefit and burden

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