access rights issues

[chestnut]

does anybody on here have any experience with dealing with access rights?

 

i don't want to go into specific details - so will cut a very long story short:

 

my father has a small chestnut copse - which has a covenant granting access to the owners of the neighboring land - as long as they pay for the make and repair of the tracks

 

they never contributed anything ever - and made a right mess of the track

 

my dad had to make the track good - at great expense - and has since refused access along it to the next doors

 

the land has changed hands - and now they want the access rights reinstated - but refuse to reimburse him for the costs of repair etc

 

he has spoken to a solicitor - but there seems to be no real legislation that covers this - and although the solicitor doesn't think they have much chance of winning - in all likely hood this could go to court

 

i would be very interested to know if any land owners on here have had any access issues in the past - and how did you rectify the situation?

 

also any pointers as to which laws or precedents might help - i have tried researching on the opsi-gov sites but trying to find what you want is like looking for a needle in a haystack

 

any tips, help advice would be very much appreciated - as i fear that as dad is not a well man anyway (bowel and prostrate cancer) that any court case and all the hassle that comes with it will probably kill the poor sod

[Tony Croft aka hamadryad]

Sorry to hear about your fathers health and the current aggravation.

 

i would think that the CAVEAT to contribute to maintanence of said track puts your father in good stead for closing the right of accses, seems a simple one to me, but then the law is an ass!

[skyhuck]

I think the problem you will have is how do you define "maintaining the track"?, they may argue that they were happy to use a rutted potholed track and that you father has made the track better than it needs to be for his own benefit. Unfortunately the law often only works if both parties act reasonably.

 

Sorry your dad is unwell, the last thing he needs is this sort of hassle.

[Saw-sick Steve]

The grey area in all these agreements is what exactly constitutes upkeep to a ''reasonable standard''. One mans mess is another mans acceptable level. Short of getting a 3rd party in to arbitrate (= time & money!), it's a difficult one.

I think you'll be on a sticky wicket regards withholding access, as presumably the new owners knew they had a right of way when they bought the land.

Is the access to a property, or just land? Do they need car access, or just tractor/4wd? The reason i ask is that we have a similar situation where a neighboring farm has vehicular access through a wood. The 'access' is a forestry track, but they need to drive a car on it. All the maintenance has been paid for by them, as I only need to get a tractor along it occasionally. Therefore, the onus is on them to improve it to car standards if they want to. I'm not denying them access, just up keeping it to what it traditionally was - a forestry track!

Another access I use belongs to another neighbouring landowner. This time, he owns the track and I have a right of way. Again, I'm supposed to contribute to the upkeep, but as he runs several holiday lets, his standards are higher than I require! So, every minor pothole is filled almost immediately, and Ive never been asked to contribute.

So, as I say, a big grey area. What sort of access does your Dad require, and why did he repair the track? Surely if the neighbours were still using it, it was accessible to vehicles?

Hope you get this resolved amicably, and best wishes to your Dad.

All the best,

Steve.

[Amelanchier]

I think the problem you will have is how do you define "maintaining the track"?, they may argue that they were happy to use a rutted potholed track and that you father has made the track better than it needs to be for his own benefit. Unfortunately the law often only works if both parties act reasonably.

 

Sorry your dad is unwell, the last thing he needs is this sort of hassle.

 

I'm with Huck - I guess its probably not what you want to hear but I suspect that the court might view the obstruction of an access right as an unreasonable response to the failure to maintain the track. They may be of the opinion that the preferred option (for the solicitors pockets at least) would have been to bring an action against the original breach of contract regarding the maintenance.

 

In addition, I think it might be hard to get compensation from the new owners, as their defence will be that they were not responsible for the condition of the track prior to their use of it.

 

Sorry

[cousin jack]

If it goes to court the only winners will be the solicitors, sorry to hear about your father.

[Doug Blease]

What are the neighbours using the track for? Recreation? Livestock? Shooting?

 

Your first point of call should be you Local Access Forum, probably a link on the local council website. This way you highlight your plight in public, then if you have to restrict access, any objections can only come through your Local Access Forum which will highlight the issues around access on your ground.

 

I have studied access law but with more emphasis on Scottish policy. As I understand it the Scottish access code is MUCH MUCH better for all involved than the English system.

[Kev Stephenson]

I think you will fail to gain money for a 'debt' from the previous tennants. The best you would get would be to document the condition of the access as it is now and agree and have signed proof that it is the new owners job to ensure the standard is maintained, this could be by an annual payment to your father in the form of a maintenance contract.

 

However as stated above is there anything in writing in the covanent that states what the access is for, e.g access road would suggest all powered vehicles, track would suggest 4x4 only. This could be used as a get out clause as in it isn't needed to be such a high standard.

 

Does your dad use the lane as well? If so does he also cause wear and tear?

 

Kev

[treequip]

The devil is in the detail and without the full wording of the covenant it’s difficult to be definitive but.....

 

If they have a covenant granting access you can’t stop them using it even if they don’t pay. Your father’s only option is to allow access is to allow access but remind the dominant tenement that they exercise their right with the burden of maintenance. It would be prudent to get a couple of estimates for any future works and agree the works in writing with the dominant tenement. That way if they refuse to pay you can use the correspondence in any recovery action.

 

It would be wise to record the current condition of the track for future reference. If the covenant says maintained (they usually do) then the burden only extends to maintenance and not improvement.

 

Usage of the easement will depend on the wording. The most common is for all purposes and at all times but some are subject to restrictions.

[treequip]

Sorry to hear about your fathers health and the current aggravation.

 

i would think that the CAVEAT to contribute to maintanence of said track puts your father in good stead for closing the right of accses, seems a simple one to me, but then the law is an ass!

 

It’s an easement, it allows access over land owned by another.

 

A Caveat is a different beast altogether, it is a warning or putting on notice.