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Aston Lawyer
Aston Lawyer, Solicitor
Category: Property Law
Satisfied Customers: 10779
Experience:  LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law
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We are attempting to sell a relatively new house (lived there

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We are attempting to sell a relatively new house (lived there for 18 years) which was a new build, along with two others. The house fronts onto an unadopted road which in turns connects to the main road. The buyer's solicitor is concerned that there is no clear right of way from our house to the main road and has queried our solicitor. Our solicitor appears to believe that the query is 'pedantic' and doesn't appear to have a sensible response. Our solicitor also did the original conveyancing when we purchased the house from the builder, Crosby Homes limited, in 1995. Presumably the builder would have established rights of way as part of obtaining planning permission? Anyway, am looking for guidance as to how to proceed now - we risk losing our buyer if not resolved quickly.
Hello and thanks for using Just Answer.

I am Al and am happy to assist you with your enquiry.

It appears to me that your Solicitor may have been at fault when you originally purchased the property if there was no right of way (ROW)granted to you to use the private access. This is something you need to discuss with him and he should hold his hand up, in this regard.

As regards XXXXX XXXXX Sale, not all is lost.
If you have no legal ROW, the law states that if a party has used a ROW for 20 years or more, then they acquire a "prescriptive right" which is basically a legal right, to carry on using it. I appreciate you have been living there for only 18 years, which means no prescriptive right can be obtained at this stage, although your Buyers will acquire such a right in 2 years time.
In circumstances where the 20 year rule can not be used, it is normal and reasonable for a Seller to arrange and pay for what is called a "Lack of Access indemnity policy". This is basically an Insurance policy to protect your Buyer in the unlikely event that the owner of the unadopted access appears and tries to prevent the Buyer from exercising the ROW. To enable you to obtain such a policy, the Insurance Companies require only evidence that the ROW has been used for 12 months or more and that there is no current dispute surrounding your use of it. They will also normally require you to sign a Statutory Declaration confirming your usage, and indeed your Buyers Solicitor will ask for this also, so their client has evidence of your 18 year usage.
The indemnity policy is not likely to be vastly expensive- it will be between £100 and £300 depending on the value of your property. If your Buyer is having a Mortgage, the setting up of an indemnity policy will satisfy the Lender and will allow the transaction to proceed, with your Buyer having the extra comfort that in 2 years time, they will have acquired a prescriptive right.

From your point of view, if your Solicitor was at fault originally, he should be agreeing to pay for the indemnity policy on your behalf!

I hope this assists and answers your question.

Kind Regards
Customer: replied 4 years ago.



Thanks for this - very helpful. Three follow-up questions, if I may:


1) would the builders (Crosby Homes Ltd) not have had to establish ROW as part of the obtaining the original planning permission for the build of the three houses? If so, would that be available for us somewhere?


2) does it matter that the ownership of the unadopted road is somewhat unclear as far as the insurance policy you suggest is concerned?


3) would I expect my solicitor to source such a policy or, am I better advised to seek one myself? (If so, from whom?)





Hi Gerry,

1) I would certainly have hoped that the Developer had obtained a ROW, but you will need to be guided by your Solicitor on this, by reference to the Deeds. At the end of the day, it appears that no ROW was granted to you and if your Solicitor goes back to Crosby Homes now to try and resolve matters, it will takes weeks to resolve, if at all, and hence why the indemnity policy is the best way forward as this can be done instantly.

2)It won't matter that the owner of the unadopted road is unknown. All that the Insurance Company will want to know is that you have used the ROW without dispute for 12 months or more.

3) Your Solicitor will sort out the policy. We Solicitors can get instant quotes online and each Solicitor has at least one Insurance Company which we use on a regular basis. I use Legal & Contingency, who are usually the cheapest if you do want to look into it- you should be able to google them- Legal & Contingency indemnity policy.

I hope this helps.

Kind Regards
Aston Lawyer and 2 other Property Law Specialists are ready to help you

Hi Gerry,

Can I be of any more assistance to you?

Kind Regards