Re: Right of way question

Ste wrote:
On 11 June, 09:12, "Norman Wells" <no-...@xxxxxxxxxxx> wrote:
Ste wrote:
On 10 June, 22:56, "Norman Wells" <no-...@xxxxxxxxxxx> wrote:
Ste wrote:
On 9 June, 18:58, "Norman Wells" <no-...@xxxxxxxxxxx> wrote:
He is not
entitled to do anything to my property without my say-so.

You've already given your say-so, in the covenant.

Where?

By granting the easement of access, and also covenanting to meet
half the cost of maintaining the pathway.

Neither of those gives him any right whatsoever to repair or
maintain land or property which is not his. If you think otherwise,
you misunderstand the law as it relates to property and to trespass.

My thinking is that you actually know less about the law than I do as
it relates to real property, but that nevertheless you continue to
make bald assertions which patently have no support either in the OP's
account of the circumstances or in the laws of our land.

You may indeed think that, but quote nothing whatever in support of your position, nor give any rationale for it.

What the OP has been granted
is a right-of-way across the land. If it is blocked, he can do the
minimum necessary to remove the blockage, and that's it. If it's
passable, that's all that is required, and it clearly is.

I quote the OP: "The path is very narrow and steep and slippery and
regularly at this time of year needs to be cut back".

Whether the path is passable is a question of fact, but I would argue
that the path is not "passable" if it involves risks that would
regularly cause injury and damage, or which would deter any sane
person from using the path at all.

Which it clearly doesn't as the OP continues to use it.


On that basis Norman, I don't know
where in the OP's posts you've gleaned the information necessary to
state as fact that the path is "clearly" passable in its present
condition - indeed the whole of the OP's complaint appears to be that
the path is not passable.

He apparently continues to use it, so it must be passable. Otherwise, he could not obtain access to the house where he continues to live.

What he is
entitled to do is get the court to order me to do something if I
am found to be in breach of an agreement I have with him.

Or he can self-help.

No he can't. He has no right to do so.

I really can't see your perspective on this Norman. As far as I'm
concerned, the OP's course of action would be straightforward: to
make good the pathway

In which case it's trespass.

To which the OP may have various explicit defences,

Such as?

and even if not
the OP could competently argue that the landowner should not recover
damages in any event.

On what basis?

and then either sue the landowner for specific
performance of the covenant (to pay half the cost)

Specific performace would be to make the landowner repair and
maintain the path, and then only if the covenant imposes that
obligation on him. It wouldn't be to make the landowner pay half for
what would be an unlawful trespass.

The landowner is not paying for an unlawful trespass. He is paying
according to the undertaking he gave in the covenant, which is that he
will pay half the cost of maintenance.

The landowner has given no such undertaking, at least not explicitly. The only undertaking given is in fact by the OP who has agreed to pay half. The covenant gives no permission to the OP to indulge in repair or maintenance of the landowner's property, nor to charge him if he does so.

The decision to repair or maintain, and how it is done, lies entirely with the landowner. It's all part of the benefits that go hand-in-hand with ownership, and is the point you don't seem to appreciate. When you do, you'll understand the true position here.



The landowner could, in reply, whack in a counterclaim (I'm not sure
exactly what for)

I've told you. It's trespass.

"Trespass" is a very large category of wrongs.

It's unlawful interference with something the landowner, and only he, owns.


, but the OP may well have a defence of necessity if
the pathway is the only access to his own premises

If nothing actually blocks the right-of-way, no defence of necessity
exists.

I would again refer you back to the OP's statement that the path is
"steep, slippy, narrow and overgrown".

Can't do anything about it being steep. That's how it is. If it's still passable, as appears to be the case, then it's not too narrow or overgrown. I note too that the OP only slipped on it when not lawfully exercising his right of way but actually instead doing some gardening, presumably involving unlawful damage to the landowner's plants or trees.

, or alternatively
the OP could argue implied rights to carry out the remedial work.

But there is no such implied right. It would be an unlawful trespass.

So you continue to say. The fact of the matter is, the OP has an
easement of access, and existing behind that may well be a residual
common law right of access (if the plot is essentially landlocked on
all sides). The covenant makes no provision for who specifically
should carry out the maintenance, and nor does it specifically
prohibit the OP from carrying out the maintenance.

It doesn't need to, since that right rests wholly with the landowner as a privilege of ownership. If it meant to allow the OP to carry out maintenance, it would have had to give that right away, but it doesn't.

On that basis, I
argue that either party is entitled to carry out necessary
maintenance.

But you'd be wrong.


But
even if the OP does not have any strict defence, I still don't see
on what grounds the court would award any damages to the landowner
- as I said, it would be unconscionable to allow the landowner to
recover damages in this situation.

No it wouldn't. The landowner owns the path. It is for him alone to
decide how it should be maintained.

Only insofar as it remains passable.

If it is not passable, then that's a breach of the covenant, and has to be dealt with as such through the courts if need be. But the OP does not acquire any rights to general maintenance or repair, and even less to charge the landowner for it. The only right he has is to do the minimum to be able to get through.

If the OP decides, say, to put some nice pink
steps in the path 'to maintain it and make it safe' and these are
not to the landowner's liking, I think it would be perfectly
reasonable for a court to award him damages for trespass, or order
their removal.

It's very unlikely that the use of pink could be justified on the
grounds of "maintaining and making safe" the pathway - and you already
seem to accept the unlikelihood of that argument by framing it in
quotation marks.

No colour can be justified on those grounds, nor unjustified. It's all a matter of taste.

Since it's the landowner's land, he's entitled to exercise his taste on it. There is no justification whatsoever for the OP to be able to force his hand.


.

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