What are the transactional potholes of unadopted roads?

Unadopted roads refer to roads which do not have to be adequately maintained by the highway authority under the Highways Act 1980. A legal duty to maintain these roads still exists, but it falls onto the owners of the road, which usually consists of the owners of any properties fronting that highway.

The public usually has the right to freely pass along any unadopted road, which differs from private roads, where only the owner and those with permission can use them. Furthermore, those responsible for its maintenance do not get any enhanced rights over the road, on account of their financial contribution. For example they can’t construct a gate at the road’s entrance, nor do they get any reduction in their council tax payments.

It is imperative that any purchaser is made fully aware of all the legal complications of purchasing property along or near an unadopted road.

Unadopted roads will vary from highway to highway depending on how well maintained they are. The worst offenders may have countless pot holes, poor drainage and no street lighting. This can leave the residents having to dig deep to collectively fund the rectifying of any such issues. As a result, a property on an unadopted road can be a major stumbling block in a conveyancing transaction, not only because of the purchasers’ future financial outlay and concerns from their lender, but also the potential arguments it could cause with neighbours over expected monetary contributions.

An indemnity policy may need to be acquired when dealing with an unadopted road to cover the mortgage lender for the liability of any legal costs relating to the road. It is often expected that the seller will pay for this. Another policy that may want to be taken out relates to the point that the owner of the road can be liable for injuries suffered by the public who use the road. It may be advised that insurance is sought to cover any such eventuality, particularly if it is a frequently used road that isn’t up to “well-maintained” standards.

The purchaser may also want to know how the unadopted road could be adopted by the council to remove these burdens. This is purely a decision for the local authority, who will expect the road’s current condition to be such that they won’t have to immediately spend money repairing it. The expense of bringing an unadopted road up to a suitable standard has to be met by the owners of the properties fronting the road. The council could potentially carry out the work on the road themselves and then invoice the property owners for the cost – one more concern a potential purchaser should be made aware of.

Sometimes the road will be adopted by the council in the future, or should previously have been adopted, under a Highways Act 1980 Section 38 agreement. This Section is the most common way of creating new highways through stipulating that a developer will create the road and subsequently maintain it to an agreed standard for a period of time. Thereafter, the local council will agree to adopt the road and maintain it themselves as a public highway.

Consequently, if the road is unadopted because it is not up the authorities’ standards, the developers of the road may play an important role. Under the agreement the developers may be contracted to ensure the road was built and maintained to the right standard and ultimately adopted. Where there is an agreement and the road hasn’t been adopted, it should be inquired with the highways agency why this may be the case. It is possible the developers have failed to maintain the road to the required standard. This means unadopted roads could end up as a litigation nightmare for those living on it. This is particularly the case since they will not be a party to the Section 38 agreement, so they can’t legally force the council’s hand over the matter.

As a result of all this, it is important that clear and unequivocal language is used when explaining to any client what an unadopted road is and what the risks are. This way they can’t then turn around and blame the solicitor or conveyancer for any unplanned repercussions of living on an unadopted road.

Today's Conveyancer