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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22624
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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We are having real problems with our neighbours over the driveway

Resolved Question:

We are having real problems with our neighbours over the driveway to our property. Looking at the deeds it is their drive which we have a right of way over and it is and has been full of potholes and loose tarmac since we moved in five years ago. Last year after advice from the CAB we spoke with our neighbours and mutually agreed to take the tarmac up putting a pathway down the side and putting gravel on the remainder (it is 100 foot long and would cost £25k to retarmac), this was verbally agreed to be done in spring this year. Spring has come and my husband approached our neighbour who was rude aggressive and claims he cannot afford it and they like the drive as it is ... We wrote calmly to our neighbour advising we are worried about the danger of the drive, that we could be held responsible for injuries and have tried our upmost for five years to sort the drive out and asked that they please advise in writing their intentions as we are both legally bound. We today have had a VERY rude letter advising us that we are intimidating him, he never agreed to anything and that he will do what he wants with HIS drive and that if he does decided to do anything with the drive it will be to put gravel down with no path for access with a bin etc!! He also states that he is not liable if anybody gets injured and that anybody visiting our property is doing so at their own risk, and if they don`t like it they can park at the end of the 100ft drive on the main road!! We are jointly responsible for the cost of the drive and we also have it stated in the deeds that we have free access by car or by foot for us or our visitors. A cross section on the plans with the deeds shows a drive to be tarmac??
We did have a lot of building work done, and the green eyed monster is at work here a bit, but surely by changing the surface of the drive without our agreement (he is denying us access to our property with a wheelie bin etc) or by the drive not being "kept in proper repair and condition at the joint and equal expense of the person for the time being using the same" he is breaching his legal agreement - any advice please as falling out with the neighbours is not the best, XXXXX XXXXX sued or for one of my kids breaking bones is not the best either!!
Submitted: 4 years ago.
Category: Law
Expert:  Stuart J replied 4 years ago.
Hello, I am Law Denning and I am a practising solicitor in a High Street practice. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects. Because we are all in practice with clients and court and other users, I might not always respond in minutes. Please bear with me in that case

It is my pleasure to try and assist you with this today. Please bear with me while I gather some further information from you in order for me to be able to advise you fully.

Unless I have all the facts that I need, my answer would not be accurate.

Do you have a specific question?
Customer: replied 4 years ago.

Not sure if that last message went?

Customer: replied 4 years ago.

Yes please


 



  • Can they change the drive surface without our consent?

  • Is proper construction, Tarmac (as per the original build plans) as our neighbour claims this is not right? and they will do what they want to their drive?

  • Is telling us that anybody visiting is is at their own risk and as its THEIR drive they will not be held responsible - and if they dont like it, to park on the main road (100 ft from the property?) surely this is denying visitors access as per the deeds?

  • Is putting no path down and changing the surface to gravel denying us free right of way to our property as we will not be able to get a wheelie bin 100ft down a gravel drive.

  • Can they refuse to maintain the drive?


 

Expert:  Stuart J replied 4 years ago.




Welcome to the
world of shared drives.

He can do what he
likes to his drive as indeed you can do what you like to your drive, provided
it does not substantially obstructed or interfere with your use of it.



You cannot make
him pay money to repair the drive even though he may be obliged to do so in the
deeds unless the property is either leasehold and if there is a requirement in
the lease or the property is freehold and there is a covenant entered into by
each of the owners, including this one, to repair and maintain the drive.



The deeds will
refer to a covenant to observe and perform the covenants in the deeds.



There is a
doctrine of mutual benefit and burden, which means that everyone who uses a
facility and has the benefit of that use, also has the burden of maintaining it.



The problem in
this situation is the standard to which it is maintained.



If he thinks that
he is not liable for anyone who injures themselves on his drive he needs to
change is a lawyer, do a bit more reading or get some better law books. The man
is an idiot.



However, as I
said earlier, you cannot make him repair the drive on his side if he does not
want to and if he likes it as it is. He is liable if anybody injures themselves
on his half of the drive which he has failed to maintain.



Does that answer
the question.? Can I assist any further?



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follow up any individual point you make



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Customer: replied 4 years ago.

Thanks for your reply.


 


However, need to just clarify that it is his drive that we have a right of access accross that then branches off to his drive where he parks and our drive which is ours - so what you are saying is we cannot make him do anything to repair the drive we have a right of way over - but are we therefore liable as he refuses to maintain it??


 


The deeds state we are both liable to jointly pay for repairs to keep it in proper order - we understand that it must be replaced like for like (from CAB) but nowhere does it state what proper repair and order is - other than a cross section showing tarmac on the construction plans (from 1974)


 


Do you think that having to pull a wheelie bin 100ft over gravel would constitute effecting our use of our property - we do?? 100ft of damaged tarmac would be better than this!!


 


He has admitted in the letter that there are areas of excessive wear - surely this is admittance that something needs doing?


And writing that my visitors should park on the drive - is that not denying us full and free access to our property as in the deeds??


 


How would you advise us to proceed with this then?? just walk away (very carefully as not to trip!!) Am i right in thinking that we could get the driveway repaired/ replaced and then take him to court to recover costs is a surveyors report deems the drive unfit??


 


Thanks in anticipation - wish we`d never bought the damn house now!!


 

Expert:  Stuart J replied 4 years ago.



You are actually liable for repairing the drive along with him under
the doctrine of mutual benefit and burden but provided it does not constitute a
danger, you cannot compel him to repair it.

In these circumstances, he would be liable for any injury even
injuries to you.



 



The deeds might say that you are both jointly liable for repairs
and that goes along with the doctrine of mutual benefit and burden I mentioned
earlier. However what is mentioned in the deeds is not enforceable as I said
earlier, unless the property is either leasehold or he covenanted in his deeds
to do repairs.



The burden of a covenant does not pass from one owner to the next
owner unless the new owner signs a covenant himself. So it might be in the
deeds but it is not necessarily enforceable.



If he exchanges the drive for gravel, it would depend whether a
court decided whether 100ft of gravel constituted a substantial interference
with your right of way.



Yes, he can admit that stuff needs doing but refer to my comments
earlier about enforcement of covenants in Freehold property.



I am not certain what you are saying with regard to visitors.



By all means repairers much of the drive as you wish and as much
as he will allow you to do but you need to study the deeds in careful to see
whether there is a covenant by him to observe and perform the covenants in the
deeds. If you send me the deeds to his house I can tell you whether he is
obliged to repair the drive or not.



You can get them here for 3
pounds https://eservices.landregistry.gov.uk/www/wps/portal/!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/