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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71046
Experience:  Over 5 years in practice
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Hi. I am about to inherit (appropriate) a cottage and 16 acres

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Hi. I am about to inherit (appropriate) a cottage and 16 acres that was formally part of the family farm on Exmoor. However, the (shared) entrance road crosses a Common and enters the original family farm (now sold) at it's top boundary gate and cattlegrid. The new owners own the entrance road up to this point, but maintenance for this road is shared between the (now) three properties that share it. Formerly, it was shared 50/50 between the two original properties but the Contract of Sale has changed this liability to 1/3 each even though my Cottage is only 16 acres compared to 120 acres and 64 acres. Damaging skid steer machinery is now used regularly and the road has deteriorated dramatically but I accept that I can't change the 1/3 liability up to the cattle-grid, approximately half the total distance of the entrance road (8/10ths of a mile). I am concerned about the ownership/access / maintenance liability of the remainder of the road across the Common and cannot get an answer from Solicitor looking after my father's Estate. I understand that an Insurance Policy was taken out by the Executors to protect the Right of Access of the new owners of the farm against the owner of the Common blocking their Right of Way, but this does not protect my holding. Can you help or advise me please? I feel certain that I should not sign the Draft Assent forms without knowledge of ownership/maintenance obligation of the drive across the Common. Thank you.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Do you want the property or do you intend to sell it?

Is your concern the excess used by the other parties even though they are only contributing one third towards the maintenance?

Customer: replied 3 years ago.

Thanks. I want to remain in the property. My concern is OWNERSHIP of the remainder of the drive outside the boundary of the farm, as it runs over the Common to the main road. The Common is owned by the Lord of the Manor, but the road is built across the Common so who owns it. The owner of the road across the Common will be responsible for maintenance. Thank you. Do you mean Access rather than Excess??

Yes sorry I apologise. That was my dictation software. Access, not excess.

If this property has enjoyed unhindered access since time immemorial then you have an easement under the doctrine of “Lost Modern Grant” which is a legal fiction which says that the right has been enjoyed for so long that it must have been granted at some stage in the past but the documents have long since been lost.

However you have inherited the property so you either sign the ascent to have it transferred into your name or it gets put up for sale and you are stuck with it as it is.

What the solicitor can do of course if the other indemnity policy does not cover you is get another indemnity policy in your favour to cover your right-of-way over the Common and also to protect your eventual buyer whenever you come to sell because if this is not resolved now, it will need resolving later.

Can I clarify anything for you?

Customer: replied 3 years ago.

Hi. I do not think my last request got to you. Thank you for your answer. Am I correct to assume that nobody actually owns the drive after it crosses on to the Common and that we are just users as the Common is owned by someone else? Therefore maintenance is subject to reasonable negotiation and securing right of access is up to each property. Thank you

Someone must own the drive and if no one does, it belongs to the Crown!

Somewhere, someone will have the deeds for it or they may have been destroyed but back in the mists of time, someone will own it.

However they may be dead and it may be an impossibility to find out who that is.

In cases like that, (and cases where ownership is known) it is a case of everyone getting their heads together and agreeing to do work or repairs.

That can be a problem.

The usual way of apportioning the cost of repairs is under the legal doctrine of "mutual benefit and burden" which basically says that the person that uses it the most pays the most for repairs, in proportion of course.

If anyone comes out of the woodwork and claims ownership, you then have someone to pursue to do repairs!
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Customer: replied 3 years ago.

Thank you!!

No problem and all the best.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’. You can also bookmark my profile