It has long been settled law that, unless the parties have agreed otherwise, the owners of land benefitted by an easement are entitled to enter onto the servient land to make the grant effective – for example, by constructing a roadway that is suitable for a right of way granted by the servient landowner. Once the roadway exists, neither party is under any obligation to maintain or repair it. But the parties can each do so, at their own cost. Consequently, the owners of the dominant land will be entitled to enter upon the servient land to do any necessary work in a reasonable manner.
The litigation in Barre v Martin [2021] EWHC 2039 (Ch) concerned a right of way that was relocated in 1992 pursuant to a deed that granted the owners of the dominant land a right of way at all times and for all purposes over a newly built roadway – and which contained a covenant that the servient landowner, a company, would keep the roadway “in good repair and condition”. In return, the owners of the dominant land covenanted to contribute a fair and reasonable proportion of the costs and expenses incurred in maintaining the new roadway as “a roadway suitable for agricultural use only”.
The company transferred the servient land to the individual who owned the company – and went into administration, before being struck off. Meanwhile, the relationship between the parties began to deteriorate – as did the condition of the right of way. But the owner of the servient land was unwilling to accept that the owners of the dominant land were entitled to maintain and repair the right of way themselves. He argued that this would be inconsistent with the repairing obligations in the deed of grant. Furthermore, the deed of grant referred to maintenance and repair to a condition “suitable for agricultural use only”. So the dominant landowners could not complain if the roadway was not maintained to a better standard.
But the judge was unimpressed. The right of way was exercisable at all times and for all purposes connected with the use and enjoyment of the dominant land. The servient landowner’s argument would prevent the dominant landowners from complaining about disrepair, or from taking remedial action themselves, if the right of way were maintained to a standard that was suitable only for agricultural use. In other words, the breadth of the grant would be illusory. Furthermore, the positive covenant to repair the roadway did not bind the company’s successors in title. So it was incorrect to say that the servient landowner was responsible for repairing the roadway.
In addition, the covenant to repair had required the company to keep the roadway in “good repair and condition” and the reference to “a roadway suitable for agricultural access only” performed quite a different function. It did not qualify the repairing covenant. It limited the dominant landowner’s obligation to contribute to maintenance costs – which made perfectly good sense. The parties shared the use of the right of way and the dominant landowners might have been content with a more basic form of track, whilst the servient landowner might wish to upgrade the road to a higher standard. In that case, the reference to “a roadway suitable for agricultural access only” would operate to prevent the servient landowner from imposing a charge on the dominant owners in respect of works that they did not want.
Allyson Colby is a property law consultant
