Obligation to pay service charge

[Clearance103]

My house is on the edge of a new housing estate. I share a small part of the access road with the estate. When I bought the house the developer was going to have the road adopted but then changed their mind, kept the road and employed a management company. The new houses on the estate have obligations in their deeds to pay a proportion of the managing agents £12k fees per year and a £600 per year sinking fund to pay for the eventual repairs to the road. My deeds from when the road was to be adopted say:

Unless express provision is elsewhere contained in this Transfer or the same are maintained at public expense the transferee must pay a fair proportion of the expense of cleaning maintaining repairing and renewing any entrance drive path or access way or other land or thing used by the Transferee jointly with the others.

Do you reckon I am obliged to pay the agents fees and sinking fund cost? Or should I just be contributing when the road is eventually in need of repair?

[Jessa2068]

Is there another clause in your transfer that sets out the computation of service charge? When service charge is to be collected, the transfer usually sets out the proportion you will be liable for and what the management company’s charges may include (e.g. the sinking fund).

[Clearance103]

Thank you for your reply.

There’s no more detail on the computations, proportions or liabilities.

The only other relevant clause sets out what happens if there is a dispute over the proportions- refer it to a RICS surveyor.

The road was due to be adopted by the council when I bought the house, so there was no need.

The new houses on the estate have clauses and covenants with the management company.

I found a potentially relevant bit of case law:

Criterion Buildings Ltd v Mckinsey and Company Inc. United Kingdom and another [2021],

“provided a landlord acts with rationality, it has the ability to determine apportionments and it is for the tenant to prove otherwise.”

If this is relevant to my situation, then it perhaps doesn’t matter that my TP1 doesn’t have the detail. The management company can impose what they like, and it’s up to me to prove otherwise.

[R0b]

Are you a freeholder or a leaseholder?

Unless your deeds explicitly make reference to paying costs and other fees to the management company, I think you have to take a strict interpretation that you are only required to pay the expense and cost of maintaining the access road.

The phrasing of the provision also refers to others who might use the road. So the first thing I would be asking myself is, who uses the access road, is it yourself and a handful of owners or the whole estate? Let's assume for example there are 50 owners on the estate who use the road, you might argue that a fair proportion should 1/50th of the fees. On the other hand, if you have no need to use the access road or no intention of using it, you might argue that you do not need to make any contribution or, if it is an occasional use, then you may want to pay a fair proportion based on usage (note: nothing in the language suggests that you must pay an equal portion, only a fair proportion based on use of the access road).

Another thing to note is that there is nothing to indicate the frequency of when these costs and expenses should be paid. Therefore, you could argue that you pay nothing until it is actually time for the road to be repaired, cleaned, renewed etc. That could be both an advantage and disadvantage since you might get lumped with an expensive invoice for your part if, let's say you don't pay anything for 10 years and now the road needs resurfacing.

As a side note, and I am no property law expert, my understanding is that under the Highways Act 1980, a private road is to be maintained by the 'frontagers' i.e. those who abut/adjoin the private road, regardless of who actually owns the road i.e. the maintenance company. I am not sure of the interplay between the HA 1980 and your deeds which require to you to maintain a fair proportion other than the HA 1980 is legislation and trumps all, so it would seem you have both a statutory and contractual obligation with the contractual obligation being wider than the statutory one since it should cover all users rather than those who front the road and are adjoining.

You may want to do some research into that or perhaps pay for some initial legal advice as to your rights and other obligations we haven't covered here.

[Clearance103]

Thank you for your thoughts which echo what I was wondering. I’m a freeholder and only use a small portion of the road, but do need to use it.