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Repair to right of way

Repair to right of way

This was a dispute relating to the repair of a right of way, and payment of contributions to the cost of repair, that turned upon the express terms of a reservation. However, the CA usefully set out the general principles that apply at common law in the absence of any such express clause. They are as follows:
    (1) A grantor of a right of way ("the servient owner") is under no obligation to construct the way;
    (2) The grantee may enter the grantor's land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him ("the dominant owner");
    (3) Once the way exists, the servient owner is under no obligation to maintain or repair it;
    (4) Similarly, the dominant owner has no obligation to maintain or repair the way;
    (5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;
    (6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost. He has a right to enter the servient owner's land for the purpose but only to do necessary work in a reasonable manner.
(See Longmore LJ at para 8).

Carter v Cole [2006] EWCA Civ 398.

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