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James Mather
James Mather,
Category: Property Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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I live at the end of a long private unmetalled farm track part

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I live at the end of a long private unmetalled farm track part of which belongs to a third party. Clearly I have a right of way over the whole track. The track frequently becomes bady damaged and requires repairs.
As the dominant owner I understand that I have the right to carrry out repairs, at my own expense, provided I don't damage property belonging to the servient owner. I also understand that I cannot improve the track - merely carry out necessary repairs.
Does the servient owner have the right to place any conditions upon the nature of the repairs - i.e. the type / colour of materials used?
Also, if he is unhappy with the materials used, does he have the right to remove them or would that constitute interference or damage?
Has he attempted to do so?
Customer: replied 5 years ago.

Not yet but he has written to us in the past and threatened to either force us to remove the material or to remove it himself and then send us a bill.

he does that, and undoes your repairs, even though he may not have wanted that
the repairs done in the first place, it is criminal damage and is a police

refer to dominant owner and Servient and owner, I think you mean tenant rather
than owner.

the situation is that somebody else owns the land and you have the right over

we have the full background please? What exactly is the wording in your deeds?

Have solicitors written or has he written on his own ?

I need as much detail as possible please.

Bear With me over weekend because I will be online and off-line

Customer: replied 5 years ago.

The situation is, as you suggest, that someobody else owns the land but I have the benefit of a right of way over it - with or without vehicles.

I don't have the deeds in my possession so am unsure as to the exact wording. I believe that there is no specific wording regarding maintenance and repair other than the fact that I am required to contribute a fair proportion towards the cost. There is certainly no mention of anyone actually being responsible for carrying out the repairs.

The letters have not come from a solicitor - they have been personal letters.

I am wondering why Mr Obnoxious doesnt want you to repair it? Can I have the background please? I am on and offline all day today
Customer: replied 5 years ago.

There is no real background to this. There have never been any bad relations between us and we are always pleasant and courteous to each other if our paths cross. He does, however, have a reputation for issuing these kinds of complaints whenever any remedial works are carried out on his property, by me or by others, and will always find fault with either workmanship or materials.

I don't believe he objects to the repairs being carried out BUT he wants to specify method and materials, even though he makes absolutely no financial contribution, and will threaten to 'undo' any repairs which fail to meet his 'standards'.

The important question here is - does he have the right to place conditions on the manner in which repairs are carried out?

The liability to repair does not have to be in the deeds. There is
a legal doctrine of mutual benefit and burden whereby each person who uses the
right of way, pays for maintenance in proportion to the amount of the use. He
may own the right of way, but he be does not use it, he has no liability to
repair it.

The legal situation is that repairs have to be carried out in a
workmanlike manner. Please note, these are repairs not a complete resurfacing
job to make the track better than it was before. Assuming you stuff tarmac into
some of the holes, if he then decides to remove it (it would appear to be the
actions of an idiot!) On the basis that it has not been stuffed in the holes to
his liking (I am certain that a bad repair is better than no repair at all), then
his disruption of your (even) half-hearted repair is criminal damage.

With regard to the repairs. He can only specify anything provided
what specifies is reasonable.

Can I help further?

The next
part is really important for me:

don't forget to positively rate my answer service (even if it was not what you
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The thread remains open. Thanks

James Mather and other Property Law Specialists are ready to help you
Customer: replied 5 years ago.

Could I just clarify another point regarding trees and shrubs at the side of the track. He has planted a large number of trees and shrubs alongside the edge of the track - in some places only about 1 metre from the edge. These trees are now getting bigger and some of the branches are beginning to hang over the track. Over a period of time, if not cut back, they will clearly obstruct the passage of vehicles.

Do we have the right to cut back any overhanging vegetation in order to maintain free passage along the right of way or would this be classed as criminal damage?

As they dont overhang a boundary they are not trespassing BUt they are an interference with your right. I would simply tell him that you intend to cut them on X date and he should let you know if he has any problem with it?

If he doesnt he cannot then alleage criminal damage.