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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24276
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I have a signed covenant with my neighbour who has right of

Resolved Question:

I have a signed covenant with my neighbour who has right of access over my drive and is claiming against my home insurance;' it states to observe and comply with the rights, covenants and other matters referred to in the charges register of title number K564023 and to indemnify the transeror [myself] from and against all actions, costs, proceedings,claims and demands in respect of any future breach or non-observance.' He is claiming for his wife's twisted knee and her subsequent private surgery. The covenant was signed by him in July 2012 as part of the sale of land from me to him, can he claim against me?
Submitted: 10 months ago.
Category: UK Property Law
Expert:  Joshua replied 10 months ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

How did his wife twist her knee please - I am presuming she injured herself whilst on your drive?

Joshua :

Have you looked at the charges register for title number K564023?

Customer:

Correct she is claiming that she twisted her knee in a pothole on the drive whilst walking in flat shoes in the dark with a torch and that she did it again a few weeks later. just looking up the charges reply shortly

Joshua :

Thanks. Is there a pothole on your part of the drive as she claims?

Customer:

Yes but it is very shallow not more than 4-5cm deep and more of a shallow depression really

Joshua :

Thanks. Is it something that in view needs maintenance or does it not constitute a danger to pedestrians or a damage risk to cars passing over it? Is the drive surface intact over the same?

Joshua :

Is there anything in your deeds you are aware of that requires you to maintain the driveway?

Customer:

The rest of the 'track' is of sound construction, this hole caused by the passage of vehicles off the tarmac apron immediately off road to road stone track. We have repaired it by filling with further road stone in the recent past, now most of the traffic is my neighbours vehicles. It does not pose a significant risk to vehicles, the track is wide and this depression is easily avoided when on foot, the neighbours also have other access to the road although this is on the bend of a country road so I can see why they would have used the drive.

Customer:

The original charges are to do with the right of access, and rights to access retained land for the renewal and maintenance of services with the provisio that after such works the area is made good and he pay a proportion of the expenses for doing so. however there is a phrase 'complying with all conditions imposed by the owner and occupier for the time being of the property concerning the exercise of such right of entry' And another which says 'making good to the satisfaction of the owner and occupier for the time being of the property concerning the exercise of such right of entry'

Joshua :

Thanks. I see you are still typing but finally - is there anything in your deeds you are aware of that requires you to maintain the driveway?

Joshua :

Thanks. There is case law on this issue. The case you will wish to read is McGeown v Northern Ireland Housing Executive 1994. Here the claimant lived with her husband in a terrace house of which her husband was the tenant of the housing executive. Part of the area between the terrace and the one opposite had been adopted by the highway authority. It surrounded a remaining part, which was partly flagged and partly grass covered, owned by the housing executive. This was crossed by three footpaths over which the public had acquired a right of way. The claimant tripped in a hole in one path and broke her leg. The hole was caused by a failure to keep the surface of the pathway in good repair and constituted a danger to persons using the pathway. The claimant sued for compensation for her injuries.

Customer:

yes but in the covenant mentioned it says ' a right of way at all times and for the purposes with or with out vehicles and animals and in common with all other persons entitled to the like right over the access subject to the transferee paying a fair proportion of the repair and maintenance costs' he has just refused to pay anything

Joshua :

The claimant failed in her action appealing all the way up to the House of Lords. The Lords decided that a person using a public right of way is not owed a duty of care by the owner of the soil over which the right of way passes to maintain the right of way in a safe condition. The same law applies to private rights of way.

Joshua :

As the owner or occupier of your property under the above decision you owe no maintenance duties to people crossing your land under a right of way. You can be liable for mis-feasance for example if you dig a hole in the right of way but this is not the case here. You cannot be liable for just letting it deteriorate however.

Joshua :

The only way in which you can be liable is under a) the Occupiers Liability Act if the neighbour can show you invited them onto you land - e.g. to visit you as opposed to them exercising a right of way or b) if there is a specific liability indemnifying them against injury and damage n your title deeds which is highly doubtful.

Customer:

Ok so if the loss adjustor for the insurance company denies the claim as he might well do here, would there be any re course to claim in a civil suit or through the small claims court?

Joshua :

Accordingly his claim would appear to be defective. You house insurance is likely to contain a PLI insurance element for injury to members of the public and presumably they will defend the claim on your behalf under the above decision.

Joshua :

The neighbour can issue proceedings in the county court - there is no way to prevent someone issuing a claim but their claim based on these facts would appear to be defective as above. You will wish to speak to your insurers to make sure they do intend to deny the claim as would appear to be proper.

Customer:

yes my thoughts too. I belive this to be a malicious claim however he has got a noi win no fee lawyer to chase this so waht more might I expect him to do?

Customer:

sorry for the typos

Joshua :

Quite. The lawyer should or may be does know better but may simply be trying it on. I cannot see there would be much point attempting a claim in the courts following the above decision but may be hoping that the insurers will settle the matter and has calculated that it is worth trying for the sake of a couple of letters.

Joshua :

Is there anything above I can clarify for you?

Customer:

Could you quote the case law you have outlined above so I have it if necessary please.

Joshua :

Certainly. Hold on and I will fetch a link as well...

Customer:

thanks you have made my day!

Joshua :

Here is the law report on the case.

Joshua :

http://www.independent.co.uk/arts-entertainment/law-report-no- duty-to-right-of-way-users-mcgeown-v-northern-ireland-housing-executive--house-of-lords-lord-keith-of-kinkel-lord-goff-of-chieveley-lord-brown-wilkinson-lord-mustill-and-lord-lloyd-23-june-1994-1425661.html

Customer:

brilliant thank you

Joshua :

The case is McGeown v Northern Ireland Housing Executive [1994]

Joshua :

A pleasure

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Happy to rate may have other questions a bit later but lunch hour is up!

Joshua :

That's fine. You can return at any time to the thread to ask follow up questions. It does not close.

Joshua :

Very happy to continue to assist

Customer:

Ok great

Customer:

Its not letting me rate though

Joshua :

Sorry - my fault. It should work now.

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24276
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and 4 other UK Property Law Specialists are ready to help you

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