Avoiding the bumps in the road

23 October 2013

Graham Pierce of Worthingtons Solicitors Belfast addresses the impact of a recent Court decision and the need for clarity when it comes to maintenance costs on private roads.

In an interesting reminder of some basic principles of conveyancing and land law the Court of Appeal in England has recently restated the position in relation to the use of rights of way (and other so-called easements) where liability for maintenance and repair costs is in dispute (Goodman and others v Elwood [2013]).

The facts involved the on-going costs of maintaining and repairing a private unadopted road in an industrial estate in Nottingham although the principles involved apply equally to residential property. In this case the freehold owner of one of the units on the estate argued that he was not liable to contribute to those costs on various grounds, including that he himself had not given any covenant to make contributions and on acquiring his unit had not become bound by such covenants given by previous owners. This was despite his use of the road on a daily basis and the fact that the other users at the estate all made contributions.

The Court of Appeal held that the “benefit and burden” principle applied which is that a party may not take a benefit (in this case the right to use the road) without accepting the burden that goes with it (the obligation to contribute to maintenance and repair costs). In other words the right to use the road was made conditional on compliance with the positive covenant to make contributions. It was open to the owner to decline to make contributions but in so doing he would then loose the right to use the road.

The Court set out the various conditions which must be satisfied for the burden of a positive covenant, such as a covenant to make costs contributions, to be enforceable against successive owners of freehold land and for the “benefit and burden” principle to apply. Central amongst them is that the benefit must be conditional on, or reciprocal to, the burden or put another way, there must be sufficient correlation between the rights granted and the obligation to pay. In the case of a right of way or other simple easement and the associated costs of maintenance and repair, this condition will usually be easily satisfied.

Most modern estates and housing schemes benefit from more sophisticated legal arrangements between owners which provide for enforcement of positive payment obligations such as deeds of Covenant and registered title restrictions. Also these problems of enforcement against successive owners generally do not arise where a landlord and tenant relationship exists, for example where the land is held under a 999 year lease at a peppercorn rent, as will frequently be the case in Northern Ireland. Nevertheless there are many properties around the country where the documented legal arrangements are unclear or inadequate and enforcement of obligations to contribute to the maintenance of private roads, drains, street lighting and the like remains a problem. In these cases this Court of Appeal authority may come to the aid of solicitors and their clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Graham Pierce is a Partner in the Commercial department of Worthingtons Solicitors Belfast. Please submit any queries you may have in the Enquiry Form below and a member of our Commercial property team will contact you directly.

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