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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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We are having some difficulty selling our house because of

Resolved Question:

We are having some difficulty selling our house because of concern about the existence (or not) of a right of way over an unadopted road, of uncertain ownership, to the nearest proper road. Our deeds are completely silent on this topic. We have offered the buyer an indemnity via an absence of easement insurance policy but there appears to be some doubt over whether this is acceptable to the lender.
Meanwhile, a near neighbour who moved into his property on an adjacent plot at the same time as us 18 years ago, tells me that there isn't an issue because the unadopted road is in fact designated as a highway, albeit unadopted, and points to the council street lighting on it as evidence. Does this make sense? If so, how would I verify. There doesn't appear to be anything on the council web-site which is explicit about which roads are adopted.
Submitted: 3 years ago.
Category: Property Law
Expert:  wingrovebuyer replied 3 years ago.

wingrovebuyer :

Hello. Your buyers solicitor has probably done a search with the local council which shows the road is not adopted. You should ask them to send a copy to confirm. If it does confirm this, you need to demonstrate that the road has been used to access your property for at least 20 years. if this is the case, than then you can claim the necessary rights through prescription (long use). this won't solve all of the buyers problems however, as they may still be concerned about maintenance liabilities for the road. However, your buyers lender should be satisfied that property has all necessary right of access.

wingrovebuyer :

Coupled with an indemnity insurance policy, i think we should be sufficient.

wingrovebuyer :

It might also be that your property does have a full right of way, but I expect ypur conveyancer has already checked this.

Customer:

Thanks. There is no doubt that the road is not adopted. The property was built 18 years ago so the twenty year rule does not (yet) apply. The assertion my neighbour is making is that the unadopted road on which we front has been designated as a highway by the council and that therefore we do not need additional rights of way over it to the nearest adopted road. My query was really to establish whether this makes legal sense?

Expert:  wingrovebuyer replied 3 years ago.
In simple terms, no, it doesn't make sense. If it is a highway, that does not mean you don't need additional rights etc. this simply means it is land that is used as a road. However, it has to be adopted highway for you to have full rights over it, or a private highway with private rights over it.
Customer: replied 3 years ago.

Thanks - I suspected as much.


 


Would you expect the lender to be satisfied then with the indemnity insurance for 'absence of easement'? There seems to be a view that they won't be, but no reasons have been given.

Expert:  wingrovebuyer replied 3 years ago.
I should add that if the highway has been used as such for over 20 years, there could be public rights from which you could benefit, but you seem to suggest it might not have been used as such for that period. In that case, it sounds like a private road, used like a highway, but not yet open to use by all. I hope this makes sense?I think the lender should be satisfied with the insurance you have suggested - provided the property value is unaffected (and insurance ensures it is) I can't see why the buyer or his lender wouldn't accept it. In any event, in another two years, the buyer will have achieved prescriptive rights, if needed.
Customer: replied 3 years ago.

Parts of the road have been used for well over twenty years. Our property is one of three houses built 18 years ago on the plot of what had been a much larger and older house. Proving that the road had been in use for much longer than twenty years is probably not too hard - but do the rights apply to the three new properties sitting on the old plot?

Expert:  wingrovebuyer replied 3 years ago.
That's an issue that often arises - it very depends on the precise circumstances, but sometimes an easement can be "expanded" if the use hasn't intensified significantly. This is a relevant point to make to the buyer's solicitor, and to the insurers, as it should add some xtra comfort even if it doesn't resolve the issue fully. As above, I can't see why the lender wouldn't accept insurance, especially if the road has been used to serve your house for 18 years and the previous property for even longer before that.
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience: Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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