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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11266
Experience:  30 years as a practising solicitor.
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Hi, we have a country house in Scotland, for which Crown Estate

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Hi, we have a country house in Scotland, for which Crown Estate own the Access Road. The access road is now in an unreasonable state of repair making it difficult for cars to pass and access our property. Crown Estate claim they only use it as an agricultural track and are refusing to repair the road unless we pay 50% of the cost and they then want us to write this into our deeds. Our deeds which were likely to be drawn up in 1940's only states we have a right to access the property. We are not sure where to go next as we cannot afford to pay for a road we don't own, only to have farming machinery smash it to smithereens!! We are not sure where to go next with this, do you have any advice?
Submitted: 3 years ago.
Category: Law
Expert:  JGM replied 3 years ago.
Thank you for your question.
The Crown Estate is wrong here.
You have a servitude right of access over the road. Your titles do not impose any duty of maintenance on you at all. Because of this they are responsible for maintaining the road in a condition which will allow you to enjoy the access rights which has been given to you. This is a heritable right against the property itself. It is not a personal right between you and them.
You are going to have to be a bit harder in your dealings with them. Just because they only use the road for agricultural purposes does not mean that they can ignore your own access rights. You would be entitled to demand that they repair the road. If they do not you could take them to court and seek an order making it then do so, all based on the heritable rights contained in your title deeds.
I have not seen your title deeds and can only answer your question based on what you say. Any lawyer taking the matter on for you would of course carry out a full examination of the title deeds.
Again, however, from what you say it would appear that they are trying to bully you into changing the deeds. You do not have to agree to this and you do have rights in this matter, rights which were laid down in the title deeds many years ago.
In summary, if there is no obligation of maintenance written into the titles, you have no duty of maintenance. The owner of the road does.
Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

Thank you for your response, very helpful. I have another meeting with Crown Estate solicitor on Monday as I have told them there is no way I am writing into my deeds that I am 50% liable for the cost of maintinence repairs on the road. We have already had a delivery van come of the road and narrowly avoid rolling into the field, if they decide to sue they will have no claim against us, but if we put this into our deeds they would have. The guy from who I think is their lawyer is coming down to discuss the safety of the road apparent.

Expert:  JGM replied 3 years ago.
Yes, hopefully my answer will give you some ammunition.
Note that he may try to tell you that there is an implied duty of maintenance. This is a common argument. However it is a wrong argument and you should not let him try it on. You can refer him to para 2.85 of the standard work on the subject "Servitudes and Rights of Way" by Professors Cusine and Paisley.
Customer: replied 3 years ago.

Thank you so much, this is really helpful. Sorry to keep replying to you.

I have just tried to find this book to take a look at para 2.85 on the internet but it is really expensive to buy it. Will it suffice to suggest to him he refer to it without saying anything more?

If think they are worried about being sued for accidents, so they may fill in the potholes as they have done before, which only had a tempory effect on improving the quality of the road. If they still refuse to fully repair the road, what would your next plan of action be?

Expert:  JGM replied 3 years ago.
You will just have to refer to it. Law books are very expensive but he will have access to a copy.
Their legal duty is to take reasonable care of the road. If that occasions a full resurface and they don't agree then you could consider getting an inspection and report from a building surveyor.
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