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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 71050
Experience:  Over 5 years in practice.
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I have a right of way over a drive that leads to my house.

Customer Question

I have a right of way over a drive that leads to my house. The owner of the drive does not use it but refuses to give me permission to make repairs to the numerous pot-holes even though I will bear the full cost of repair.
Submitted: 4 years ago.
Category: Property Law
Expert:  Remus2004 replied 4 years ago.
Thank you for your question. My name is Jo and I will try to help with this.

How can I help with this please?
Customer: replied 4 years ago.

Do I have the right to make the repairs without the owners consent?

Expert:  Remus2004 replied 4 years ago.

There is a doctrine of mutual benefit and burden. This says that if you use something then you are responsible for the repairs although only in proportion to the amount that you use. Since he does not use it you are 100% responsible for the upkeep.

What he cannot do though is interfere with your right ot use the right of way. However, to offend he would have to 'substantially' interfere with your use. Whether the interference is substantial is a matter of degree.

I think that he is refusing to let you carry out these repairs in order to interfere with your access because it will eventually get to the stage when you cannot use it.

My suggestion would be to get a solicitor to write to him, and tell him that you have been advised that by not allowing you to do repairs, he is substantially interfering with your use of the right of way.

Tell him that if he does not allow you to repair it, you will take him to court and you will ask the court to order him to allow you to do the work and when you make the application for the order, you will also ask the court to award costs against him.

Can I clarify anything for you?

Customer: replied 4 years ago.

Thank you - it confirms my view on this matter.

Expert:  Remus2004 replied 4 years ago.
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’.