Can’t pay? We’ll take it away

Contrary to the title, what follows is not about bailiffs, but rights of way - in particular, rights of way that are created by deed and expressed to be subject to the user making some kind of contribution to the repair or upkeep of the access.

In ordinary circumstances, an obligation to repair or maintain something would be considered a ‘positive covenant’, i.e. a covenant to do something.  The default position is that the burden of a positive covenant does not ‘run with the land’, i.e. it does not bind subsequent owners of the property. 

Where then does this leave the person who owns an access that others have a right to use?  Can future owners of the property benefitting from the access be required to maintain it?

The short answer is: probably, yes.  However, there are certain conditions that have to be satisfied and each case must be considered on its own merits, so keep reading.

An exception to the default position regarding positive covenants was created by Halsall v Brizell [1957] 1 All ER 371.  Here the court decided that if a successor in title accepted the benefit of a right it must also take the burden.  At first glance, the rule in appears wide reaching.  However, cases following it have narrowed the principle. The case of Davies v Jones [2009] EWCA Civ 1164 usefully summarised the limits as follows:

1. The benefit and burden must be conferred in or by the same transaction;
2. There must be some correlative relationship between the benefit enjoyed and burden suffered; and
3. The person on whom the burden of the covenant is subject must have the ability to reject or disclaim the benefit of the right (and thus divest themselves of the burden at the expense of the benefit).

In the case of a road, the use of which is subject to a contribution to its upkeep, it is likely that the conditions laid out in Davies v Jones will be satisfied.  However, careful attention should be paid in each case to the specific words used to create the right and the other surrounding circumstances.

If you own an access, and a person responsible for its upkeep is using it, but is not meeting their corresponding obligations, your best course of action is likely to be:

1. Contact the user, explaining the situation and their obligations in respect of the access; and
2. If the above does not lead to a resolution, issue court proceedings seeking (a) an injunction preventing the right from being used, and, in the alternative (b) the cost of maintenance if the use is continued.

As mentioned above, each case should however be considered on its own merits. If you require advice on any specific issue, please contact Rob Nicholson from our Property Litigation team.