• What Happens If A Road Is Unadopted

    By Guest on 24th Jul 2016

    what happens if a road is unadopted and we act for the seller as their solicitor

  • 2 Answers

    By Guest on 25/07/2016

    It depends very much on the circumstances. Why is the road not adopted? If it is intended to be adopted and is subject to a section 38 adoption agreement then as long as the title contains rights to use it and an obligation on the developer to maintain it until adoption then all you need do is supply a copy of the s38 agreement and perhaps (if a number of years have passed since the property was constructed) an explanation from the council and/or developer for the delay in the road being adopted.

    If the road was intended to be adopted but there is no adoption agreement in place but the necessary rights are in place then it is what it is - the buyer (and his mortgagee) need to decide whether they want to proceed on the basis that they might be called upon in future to pay for any necessary repairs.

    If the road was intended to be a private road then provided the property has the benefit of a right of way and there are arrangements in place for maintenance there is no problem. If there are rights but no maintenance provisions then again, the buyer and mortgagee need to make a decision - you cannot realistically contact all the frontagers and ask them to enter into covenants with each other though the buyer might want to think about trying to set up a management company with the other frontagers after completion - it's no small task and it won't be something every buyer will be happy to organise.

    If the road is private and there are no rights to use it then you will need to provide absence of easement indemnity insurance supported by a statutory declaration confirming past use to support a future application by the buyer or his successor for a prescriptive easement. Of course a buyer isn't obliged to accept this but unless you can identify the owner of the road and have him grant an easement or your client has used the access for 20 years or more such that he can attempt to register a prescriptive easement then there's not much you can do.

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