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Rights of way: rights and obligations to repair


If your land is subject to or benefits from a right of way then ideally the right will be created by a deed which clearly sets out who is liable to repair. However in practice this is often not the case and disputes can then arise over maintenance and liability to pay for it.

If the right of way is created by a conveyance or other form of deed (often referred to as an express grant) which is silent about maintenance then the position is that once the way exists on the ground, the owner of the land over which the way passes (the landowner) is under no obligation to repair or maintain it.

The owner of the land that has the benefit of the right of way (the user) also has no obligation to maintain and repair but is entitled to maintain and repair the way but if he does so, he has to do so at his own cost. The user has the right to enter the landowner’s land to carry out the repairs and maintenance but only to do necessary work and in a reasonable manner. In some circumstances this may include improvements to the route to make it suitable for the intended purpose of the grant of right of way.

What are the risks of entering your neighbour’s land and carrying out work to repair a right of way?

Presumably the user will have first tried to reach agreement with the landowner about maintenance to the right of way and this has failed; this may be because the landowner does not want you to carry out the proposed work and therefore may object to any work that you carry out and bring a claim against you. It is therefore important, in this situation, that you ‘tread carefully’!

What are the risks of not carrying out necessary repairs to a right of way over your land?

Even though the owner of the land on which the right of way runs is not usually required to carry out any repairs necessary to ensure the enjoyment of the way, he may become obliged to repair it if there is disturbance of the easement by the landowner. So for examples if serious potholes appear this may amount to ‘substantial interference’ of the right of way and may entitle the user to make a claim against the landowner.

Does it make a difference if the right of way exists through ‘long user’?

If the right of way has been acquired by long use or what is known as ‘prescription’ then that right is limited by the nature of that use over time; this means that the user may have acquired the right to enter the owner’s land to carry out repairs to the right of way but not to carry out improvements to it.

Comment

As both parties have an interest in the surface of a right of way being maintained, it is sensible when granting the right to include an obligation for the owner to repair and for the landowner exercising the right of way (the user) to contribute a reasonable proportion of the costs of repair and maintenance carried out. Whilst this will not guarantee that a dispute will not arise, if the parties do subsequently fall out a well drafted document will assist in resolving that dispute as cost effectively as possible.

For further information relating to this article please contact Johanne Spittle, Director or a member of the Agriculture and Landed Estates Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.


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