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Repairs required to access lane we own but do not use: who is liable to pay for them?
We own an access lane to two other properties but do not have a need to use it ourselves. The lane is in need of resurfacing and one of the neighbours has requested that at least the part up to his property is resurfaced. Can he make us pay for this? Can we refuse but give him permission to have the work done? Can we limit our liability if he decides to claim against us for damage to his car/trips/falls etc?
Maintenance of shared access is a common source of neighbour disputes. This is often because the property deeds make no provision, are vague or even that they contradict the legal position.
The answer is that any positive obligation in the deeds can only be enforced between the original contracting parties whereas provisions restricting owners (negative obligations) can be enforced against subsequent owners.
For example - "shall contribute x% toward the maintenance of the drive" is a positive obligation and cannot be enforced upon subsequent property owners.
Whereas - "shall not use the driveway for commercial use" is a negative obligation.
So in many cases the deeds do not assist.
Having said that, if your neighbour were to carry out repairs and then look to you for a contribution he may succeed in a claim if he could show that you used the driveway and were therefore contributing to it's wear and tear. In this scenario the answer to your question becomes one of negotiation with your neighbour. Whilst you cannot be forced to contribute if you never use the driveway you maintain the right to be able to so arguably you could allow the repairs to take place and then begin using the driveway. In that scenario a court may have sympathy with your neighbour. The counter argument is that if you have not used the driveway for many years then the fact that it now needs repairing is not your problem.
A reasonable proposition may be that 50% of the cost should be borne by those having the right to use the driveway and 50% by those actually using it.
In practical terms this would mean that if the repairs were £6000 and there are 3 parties involved and two actual users of the driveway the first 50% namely £3000 would be borne at the rate of £1000 each and the remaining 50% would be borne at £1500 for the two users of the drive.
Finally you have asked about liability for damage. You need to put your position in writing in terms of contribution to repair and at the same time you should make clear that continued useage of the drive by them and their visitors is at their own risk. This still leaves potential liability to 3rd parties. This depends largely upon how bad the drive gets. If it is a danger then a sign should be erected at the beginning of the drive warning visitors of the hazard and to proceed on foot with extreme caution.
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