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Who is responsible for advising purchasers that a road is private/unadopted?

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Bouleversee
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Who is responsible for advising purchasers that a road is private/unadopted?

#151806

Postby Bouleversee » July 11th, 2018, 5:33 pm

When my late husband and I bought the house I live in, 10 years ago, we were not advised that the lane was a private/unadopted road. It is entered by two slip roads forming a triangle with the main road round a small island of scrub. At that time there were no signs showing the name of the lane and I got the council to instal some. I also got them to cut the verge opposite my house, which was a building site where construction had ground to a halt due to a dispute over the building line and breach of covenants and the sloping verge was turning into a forest.

Since then, I have had potholes repaired, as have had other residents, one of which had deteriorated badly following this year's snow and rain, though it is not long since it was repaired. When I tried to report it online a couple of weeks ago, I received a message saying the council is not responsible for this road and when I checked on a new list they have produced showing which roads it is responsible for, it says this is a private road, which is news to me. Our solicitor did not mention it to us when doing the conveyancing. I asked the council who owns the road and the reply from the person who had answered the telephone was "good question". The matter has been referred to a technician to sort out. The Land Registry now tells me that it is unregistered and they do not know who owns it. It is made up as far as the last house with its entrance from the lane; after that, although there are a few more houses, their entrances are elsewhere and at this point the lane is not made up and is a bridlepath. There seems to be some argument as to whether the whole lane is a bridlepath, in which case we would presumably be breaking the law as there is a notice at the entrance saying it is illegal to drive a motor vehicle down a bridlepath. That would presumably include the council's refuse vehicles, ambulances, etc. etc. as well as our own cars.

Is it not the solicitor's responsibility to do a search on the road and advise the potential purchaser accordingly? There is no residents association for all those living in the road and no sinking fund for repairs. I have no idea who is responsible for funding repairs or whose responsibility it is to maintain the verges though I do keep my own weed free and planted, despite the fact that lorries run over them from time to time. That (remembering all the contentious meetings when I owned a leasehold flat) would have been enough to put me off buying had I been made aware that it was a private and unadopted road.

Another question is whether the fact that they have done work on the road and verge in the past sets any precedent which should be adhered to. All in all, very unsatisfactory and worrying because I might have to move before long and it could well put off buyers. Something else to waste a lot of my time over and there are already insufficient hours in the day.

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151816

Postby johnhemming » July 11th, 2018, 5:56 pm

You need to check the strict legal position in terms of local searches.

I dealt with some cases like this. It is often difficult to get councils to take responsibility for unadopted roads. Money is shorter today so they really don't want to do it. It should have been identified in the conveyancing process, but I am not sure what in practice you can do about it other than buy some pothole filler and fill potholes from time to time. (In theory you might be able to sue your solicitors for negligence, but that route potentially has a lot of risk and pain - I have a set of offices where I own the car park and one of my staff fills in potholes from time to time. It isn't that difficult.)

Bouleversee wrote:Another question is whether the fact that they have done work on the road and verge in the past sets any precedent which should be adhered to.


I don't think you will win on this (estoppel would not apply). In any event forcing it would require judicial review. (again quite a bit of cash risk). Your local MP or councillor may be able to make progress, but I wouldn't hold my breath. That,however, does not cost anything so if you haven't done it you might as well.
Last edited by johnhemming on July 11th, 2018, 6:00 pm, edited 1 time in total.

supremetwo
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151817

Postby supremetwo » July 11th, 2018, 5:59 pm

I live on a private unmade lane with two others and am responsible for its repairs.

There was and is no written agreement as to who pays, but we all get on and divi up between us.

I do have right of way.

In your case, you first need to investigate easements.

-----------------------------------------------------------
http://www.boundary-problems.co.uk/boun ... ments.html
-----------------------------------------------------------

An easement is a right benefiting one piece of land (known as the dominant tenement) that permits the rightful users of that land to perform specified actions over an adjacent piece of land (known as the servient tenement). Probably the most commonly used easement is one that allows the underground services (water, drainage, gas, electricity, telephone and TV cables, etc) of one property to pass beneath the land of one or more neighbouring properties.
--------
An easement may be created "of necessity". Thus a piece of land will have a right of way of necessity over a road, track or path leading to it if that route is the only means of access between the public highway and the land.

An easement may also be created "by prescription". This happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the (potentially servient) landowner's permission for a period of least twenty years (sixty years if the act is carried out on crown or church land).

If there is a doubt as to whether or not an easement exists then the law tends to favour the existence of the easement.

-----------------------
An easement is said to "run with the land", i.e. it cannot be sold separately from the land but must be passed on with the land whenever the land is transferred to a new owner.
----------------------------------------------------------------------

See also:-
https://www.cartmells.co.uk/no-written- ... ont-panic/

The Prescriptive Period

There are a number of ways in which the prescriptive right can be claimed, however, the minimum period for which the right must have been exercised is 20 years.

What to do next

If an easement has been exercised without the right being expressly granted then the person exercising the right should make a Statutory Declaration or Statement of Truth confirming how they have exercised the right.

An application can also be made to the Land Registry to register the claimed right on the title for the property with the benefit of the right.

----------------------------------------------------------
Land Registry notes on prescriptive easements.

https://www.gov.uk/government/publicati ... escription

https://www.gov.uk/government/publicati ... -truth-st4
----------------------------------------------------------------

A vendor should provide all the relevant information and a purchaser's legal representative should ask all the appropriate questions.

Hope this helps.

Bouleversee
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151861

Postby Bouleversee » July 11th, 2018, 10:20 pm

johnhemming wrote:You need to check the strict legal position in terms of local searches.

I dealt with some cases like this. It is often difficult to get councils to take responsibility for unadopted roads. Money is shorter today so they really don't want to do it. It should have been identified in the conveyancing process, but I am not sure what in practice you can do about it other than buy some pothole filler and fill potholes from time to time. (In theory you might be able to sue your solicitors for negligence, but that route potentially has a lot of risk and pain - I have a set of offices where I own the car park and one of my staff fills in potholes from time to time. It isn't that difficult.)

Bouleversee wrote:Another question is whether the fact that they have done work on the road and verge in the past sets any precedent which should be adhered to. [/quote}

I don't think you will win on this (estoppel would not apply). In any event forcing it would require judicial review. (again quite a bit of cash risk). Your local MP or councillor may be able to make progress, but I wouldn't hold my breath. That,however, does not cost anything so if you haven't done it you might as well.


Could you please clarify what your first sentence means precisely. As mentioned previously, I am waiting for a technician to get back to me as regards status and ownership of the road. If I owned it, I would expect to pay for repairs but so far as I am aware, I don't, or even a share of it. What else should I be doing?

I had already considered finding out where I could buy suitable materials to fill the potholes in front of my house. I am sure the local paper would be interested in sending a photographer and journalist to witness an almost 82 yr old woman doing a d-i-y job of this nature despite paying high council tax and over £400 p.a. to the nearby village to pay for their roads etc. because at one point many years ago my property was a leasehold with the freehold owned by that village. So do I gather that solicitors can effectively get away with incompetence? Another resident told me this evening that hers had advised that it was a private road but the amount we pay to the village was for its maintenance which is definitely not the case. The houses on the other side of the lane do not pay this ever increasing charge which does not benefit us at all. Almost as big a shambles as Brexit.

I had planned to contact a councillor once I had had a definitive answer from the council if necessary.

Bouleversee
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151865

Postby Bouleversee » July 11th, 2018, 10:43 pm

[quote="supremetwo"]I live on a private unmade lane with two others and am responsible for its repairs.

There was and is no written agreement as to who pays, but we all get on and divi up between us.

I do have right of way.

In your case, you first need to investigate easements.

-----------------------------------------------------------
http://www.boundary-problems.co.uk/boun ... ments.html
-----------------------------------------------------------

An easement is a right benefiting one piece of land (known as the dominant tenement) that permits the rightful users of that land to perform specified actions over an adjacent piece of land (known as the servient tenement). Probably the most commonly used easement is one that allows the underground services (water, drainage, gas, electricity, telephone and TV cables, etc) of one property to pass beneath the land of one or more neighbouring properties.
--------
An easement may be created "of necessity". Thus a piece of land will have a right of way of necessity over a road, track or path leading to it if that route is the only means of access between the public highway and the land.

An easement may also be created "by prescription". This happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the (potentially servient) landowner's permission for a period of least twenty years (sixty years if the act is carried out on crown or church land).

If there is a doubt as to whether or not an easement exists then the law tends to favour the existence of the easement.

-----------------------
An easement is said to "run with the land", i.e. it cannot be sold separately from the land but must be passed on with the land whenever the land is transferred to a new owner.
----------------------------------------------------------------------

See also:-
https://www.cartmells.co.uk/no-written- ... ont-panic/

The Prescriptive Period

There are a number of ways in which the prescriptive right can be claimed, however, the minimum period for which the right must have been exercised is 20 years.

What to do next

If an easement has been exercised without the right being expressly granted then the person exercising the right should make a Statutory Declaration or Statement of Truth confirming how they have exercised the right.

An application can also be made to the Land Registry to register the claimed right on the title for the property with the benefit of the right.

----------------------------------------------------------
Land Registry notes on prescriptive easements.

https://www.gov.uk/government/publicati ... escription

https://www.gov.uk/government/publicati ... -truth-st4
----------------------------------------------------------------

A vendor should provide all the relevant information and a purchaser's legal representative should ask all the appropriate questions.

,

Thanks, supreme two. There are l7 houses which front the lane and I do not know most of the occupants so not quite so simple organising and paying for repairs as in your case. As most of the houses have been here for many years and have no other way of getting to them, I should have thought prescriptive easements would apply. As my house is the first one in the lane, it bears the brunt of all traffic entering the lane and hence has the worst potholed area. I really don't see why I should have to be responsible for maintaining it, especially as my house is probably the smallest and least valuable, in some cases by a very long chalk. I am pretty sure my income will be the lowest, too. It is idiotic that things are left up in the air in this way. Solicitors should be obliged to ascertain all the details of road ownership as well as of ownership of the individual property. I should not need to be asking these questions at this stage.

Bouleversee
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151867

Postby Bouleversee » July 11th, 2018, 10:47 pm

P.S. to previous posts:

Why should councils not be obliged to adopt all roads? I am not aware of receiving any concession on the council tax for having to maintain the road.

supremetwo
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151873

Postby supremetwo » July 12th, 2018, 1:50 am

Bouleversee wrote:P.S. to previous posts:

Why should councils not be obliged to adopt all roads? I am not aware of receiving any concession on the council tax for having to maintain the road.

Cost - they do not have any 'spare' money.

A House of Commons briefing paper on this very subject - 10 April 2018.

I find this source very good when seeking facts.

http://researchbriefings.files.parliame ... N00402.pdf

A Department of Transport survey in 1972 found that there were then approximately 40,000 unadopted roads in England and Wales, making up some 4,000 miles of road.
No later survey has been undertaken but the figure is thought not to have changed much.

The Labour Government estimated in 2009 that it would cost £3 billion to make up these roads to an adoptable standard.

The law on the maintenance and adoption of private roads in England and Wales is highly complex. It is largely contained in Part XI of the Highways Act 1980.

Briefly, a private or unadopted road is by definition a highway not maintainable at public expense.
The local highway authority is therefore under no obligation to pay for its maintenance.
Responsibility for the cost of maintaining a private road rests with the frontagers (the owners of properties which front onto such roads).

johnhemming
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151881

Postby johnhemming » July 12th, 2018, 7:11 am

Bouleversee wrote:P.S. to previous posts:

Why should councils not be obliged to adopt all roads? I am not aware of receiving any concession on the council tax for having to maintain the road.

You do, however, start travelling on adopted roads as soon as you move out of your private road.

Cost is entirely the issue.

didds
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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151889

Postby didds » July 12th, 2018, 8:34 am

Bouleversee wrote: Solicitors should be obliged to ascertain all the details of road ownership as well as of ownership of the individual property.



what are they supposed to do if there is no evidence for them to find?

If the occupants of this road have lived there for decades without any previous indication of it being unadopted, and the road has at times been upkept by "the council" how would a solicitor find any evidence of anything different ? Its clear the coiuncil themsel;ves historically don;t know either - the very body a solicitor would approach in the first place i would have thought (along with land registry, who it also appears have no idea in this case).

What other evidence could a solicitor take a definitive answer from?

CF: we bought our house in 1998. part of the solicitors remarks at the time was that our cess pit thing drained into an adjacent farmland's ditch but he was unable to get any information about any easements etc in place to permit it from the owners - the local council as it happened.

Fast forward well over a decade and the council sold the land to a private buyer. part of that sale ended up with a rather bizarre letter from the land agents handling the sale about our drainage "solution" - which had been in place as best we could surmise since 1927! the outcome eventually was that " the council" did find an easement that permitted it - but quite why they hadn;t found it when asked by our conveyancing solicitor back in 1998 who can tell?!

didds

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151892

Postby johnhemming » July 12th, 2018, 8:50 am

Councils over time have been implementing computer filing systems which means that things which were misfiled can turn up when looked for.

There are standard questionnaires used as part of conveyancing. They can probably be found on the net and there should be a set of responses in the conveyancing file. I would be surprised if this question was not part of those, but I don't know whether it is or not. In the end it is first a question of looking at the conveyancing file to see what is said about this.

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151895

Postby didds » July 12th, 2018, 9:12 am

Its very possible given the length of time since purchase that the solicitors no longer have the conveyancing file - when i contacted ours wghen this drainage easement query came up I was told they sgred their files after a period of time, and that had been done already

T^ime may well be of the essence here... if its not already too late

didds

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151925

Postby Bouleversee » July 12th, 2018, 11:08 am

didds wrote:
Bouleversee wrote: Solicitors should be obliged to ascertain all the details of road ownership as well as of ownership of the individual property.



what are they supposed to do if there is no evidence for them to find?

If the occupants of this road have lived there for decades without any previous indication of it being unadopted, and the road has at times been upkept by "the council" how would a solicitor find any evidence of anything different ? Its clear the coiuncil themsel;ves historically don;t know either - the very body a solicitor would approach in the first place i would have thought (along with land registry, who it also appears have no idea in this case).

What other evidence could a solicitor take a definitive answer from?

CF: we bought our house in 1998. part of the solicitors remarks at the time was that our cess pit thing drained into an adjacent farmland's ditch but he was unable to get any information about any easements etc in place to permit it from the owners - the local council as it happened.

Fast forward well over a decade and the council sold the land to a private buyer. part of that sale ended up with a rather bizarre letter from the land agents handling the sale about our drainage "solution" - which had been in place as best we could surmise since 1927! the outcome eventually was that " the council" did find an easement that permitted it - but quite why they hadn;t found it when asked by our conveyancing solicitor back in 1998 who can tell?!

didds


Well, if the solicitor asked if it was adopted/private and they didn't know the answer, he should have told us that, and if they didn't know then, how come they are saying now that it is private? It seems to me that the question should be part of the conveyancing procedure.

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151926

Postby Bouleversee » July 12th, 2018, 11:10 am

supremetwo wrote:
Bouleversee wrote:P.S. to previous posts:

Why should councils not be obliged to adopt all roads? I am not aware of receiving any concession on the council tax for having to maintain the road.

Cost - they do not have any 'spare' money.

A House of Commons briefing paper on this very subject - 10 April 2018.

I find this source very good when seeking facts.

http://researchbriefings.files.parliame ... N00402.pdf

A Department of Transport survey in 1972 found that there were then approximately 40,000 unadopted roads in England and Wales, making up some 4,000 miles of road.
No later survey has been undertaken but the figure is thought not to have changed much.

The Labour Government estimated in 2009 that it would cost £3 billion to make up these roads to an adoptable standard.

The law on the maintenance and adoption of private roads in England and Wales is highly complex. It is largely contained in Part XI of the Highways Act 1980.

Briefly, a private or unadopted road is by definition a highway not maintainable at public expense.
The local highway authority is therefore under no obligation to pay for its maintenance.
Responsibility for the cost of maintaining a private road rests with the frontagers (the owners of properties which front onto such roads).


Thanks, I will read this this afternoon.

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151948

Postby PinkDalek » July 12th, 2018, 12:08 pm

Bouleversee wrote:Well, if the solicitor asked if it was adopted/private and they didn't know the answer, he should have told us that, and if they didn't know then, how come they are saying now that it is private? It seems to me that the question should be part of the conveyancing procedure.



The current TA6 Law Society Property Information Form is the first item listed here http://www.lawsociety.org.uk/support-se ... specimens/. I don't know what the questions were 10 years ago but this one includes seemingly relevant questions at 8 Rights and informal arrangements. That is if ownership carried a responsibility to maintain the private road.

Do you hold the Property Information Form from when you bought and what does it say? Similarly, have you seen the results of the local searches back then?

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151960

Postby Clitheroekid » July 12th, 2018, 12:57 pm

Bouleversee wrote:it says this is a private road, which is news to me. Our solicitor did not mention it to us when doing the conveyancing.

Is it not the solicitor's responsibility to do a search on the road and advise the potential purchaser accordingly?

The short answer is `yes' - they should certainly have brought this to your attention.

When acting for a purchaser there are two principal sources of information that we rely on in relation to the road serving the property.

The main one is what's known as a `Local Search'. This is a two part document that's sent to the local authority. The first part is a search in the Local Land Charges Register for such things as whether the property's a listed building, but the second part of the Search is a list of enquiries about the property, known as a CON29. A copy can be seen here - https://www.lawsociety.org.uk/news/docu ... ver-sheet/ (I'm not sure if this link works - it downloads a copy on to my PC rather than just linking to the page).

As will be seen, question 2.1 specifically asks "Which of the roads ... named in the application for this search (via boxes B and C) are (a) highways maintainable at public expense". The reference to boxes B and C is a reference to the part of the form completed by the solicitor when submitting the Search. He inserts the address of the property and the name of any roads that serve the property.

When the Search is returned the answers need to be read carefully by the solicitor. In 90% of cases the replies are routine, and disclose nothing of any consequence. However, because of this - and because the standard of conveyancing is generally so poor nowadays - someone who's in a rush or not legally qualified (probably the majority of residential conveyancers) may miss an answer that's not routine, such as an answer saying the road's unadopted.

The second source of information is the form TA6, which is a general questionnaire - http://www.suremove.uk.com/downloads/La ... %20TA6.pdf

The relevant question here is 8.1 – “Does ownership of the property carry a responsibility to contribute towards the cost of any jointly used services, such as maintenance of a private road ...? If yes, please give details.”

Usually, the answer to this is `No', as most roads are adopted. However, if the Local Search has disclosed that the access road is unadopted then this question has particular importance, and the solicitor should read the reply carefully.

If the answer is `No', when the Search has revealed the road to be unadopted, then the solicitor is obliged to make further enquiries to find out what arrangements do exist for maintenance of the road, as this is obviously of considerable practical importance for his client.

Such enquiries often elicit a response to the effect that there are no formal arrangements, and that maintenance is carried out on an ad hoc basis by the frontagers. However, whatever the reply may be I would consider it essential to pass this information on to my client, and to ensure that they understood the implications.

Most solicitors send the client a letter usually known as a Report on Title, which sums up and explains all the information they've obtained about the property. This should, of course, cover the question of the roads that serve the property. If the solicitor fails to advise the client that the road is unadopted I would take the view that this was a serious omission, and if the client were to incur losses or expenses as a result there may well be a claim for negligence / breach of contract.

Another question is whether the fact that they have done work on the road and verge in the past sets any precedent which should be adhered to.

It would not set any legally binding precedent - it's merely evidence that there is no formal agreement.

Finally, if you haven't already done so you should check the title information for the property, as this sometimes imposes a specific duty on the owner to maintain their share of the roadway. This is particularly the case with older properties, where the presumption of adoption by the local authority wasn't as strong as it is nowadays.

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151988

Postby didds » July 12th, 2018, 2:44 pm

Bouleversee wrote:Well, if the solicitor asked if it was adopted/private and they didn't know the answer, he should have told us that, and if they didn't know then, how come they are saying now that it is private? It seems to me that the question should be part of the conveyancing procedure.



And if they told the solicitor that it was? After all, this is the same council that happily repaired potholes etc etc in this allegedly unadopted road AFTER you moved there. Clearly at those times the council was of the opinion that they were indeed responsible of its upkeep - it was adopted - ... why else would they have undertaken the work and not rejected the rerquest as they have subsequently. So why given that would they have told a solicitor that they weren't sure ?

I sympathise with your position, but blaming somebody for the problem without knowing the exact question and answer provided seems a bit tough. As others have said - get hold of the conveyancer's file and see what is in there. Then you can start pointing fingers.

didds

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Re: Who is responsible for advising purchasers that a road is private/unadopted?

#151990

Postby johnhemming » July 12th, 2018, 2:50 pm

Estoppel could apply if the council told the solicitor the road was adopted (in the sense that the council could be asked to stick by what they said). One for solid legal advice on, however.


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