passage way access payment - unregistered land

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    passage way access payment - unregistered land

    Hi, we have just inherited a house, and within the title deeds it states:

    "The land has the benefit of a right of way over the passageway leading from the back into XXX Road subject to the payment of a due proportion of the expense of maintenance and repair."

    Chatting to the neighbours we know, they have stated that they haven't paid a fee and that the passageway isn't maintained at all, but the passageway is fairly usable to access the garage at the back for everyone.

    I am going to ask the land registry who owns the land, but I believe it maybe unregistered, as the original conveyance of the land in the title was 10th October 1896.

    Question, if the land is unregistered a few of the neighbours and myself are thinking of purchasing the land (if possible) and then charging an annual fee to everyone circa 15 houses to help maintain the passageway. Does anyone see any concerns with that?

    We thought it was a way to protect ourselves for any issues in the future and that passageway remains well maintained.

    #2
    I'm not sure that would work. Whilst the user has to contribute to actual repair I don't think you can impose a charge just in case you need it in the future. If anyone chooses not to pay an annual fee I don't think you can either enforce it or stop their access. As you don't know who owns it who will you buy it from?

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      #3
      "The land has the benefit of a right of way over the passageway leading from the back into XXX Road subject to the payment of a due proportion of the expense of maintenance and repair."

      The above is often seen, but in practice is of little practical assistance as it does not say to whom payment is to be made or how the due proportion is to be calculated. Such clauses were put in by or insisted on by conveyancers who thought they worked.

      If the land is unregistered and the first conveyance was back in 1896 the chances of finding the current owner are fairly remote. Should you be lucky enough to find an owner willing to sell, your project is, I have to say, something of a non-starter. There will be no obligation on any of the owners to pay; even if there was, some will inevitably decline to pay.

      There must be thousands of passageways up and down the land which no one looks after but which are perfectly adequate for occasional use. The best you can do if repairs really are needed is to call a meeting of neighbours.

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        #4
        Just to clarify how the Common Law deals with the maintenance of a private right of way.

        Neither the owner of the passageway, nor the owners of the dominant tenements that have a right of way over it can be compelled to maintain it.

        Anyone with a right of way can maintain it, but that would be at their own expense.

        That would mean that despite not owning the legal estate in the passageway, (i.e. The Freehold) the legal interest over the passageway that each uses has, (i.e. The Easement granting a Right of Way) would permit you and any other of the neighbours prepared to pay for a repair to go ahead and make the surface fit for purpose.

        Forget about trying to buy the passageway.

        Instead you need to get the neighbours to agree to maintain it voluntarily, or at least get some of them to contribute to having some attention given to the current state of the passageway to allow some repairs to take place.

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          #5
          thanks for the helpful replies. I'll bring it up with the neighbours the best way forward is for us all to have the passageway resurfaced and split the costs between us all.

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            #6
            the best way forward is for us all to have the passageway resurfaced and split the costs between us all.
            Agreed it will be the best way forward, so good luck with getting a 100% agreement with the neighbours.

            Even if some of them agree that may still be an effective way of getting the resurfacing done even it means each of the "volunteers" will have to pay slightly more than if everyone contributed.

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