Shared private roads and the potential pitfalls
If you are buying a property, or own one already, that is on a shared private road, there are some things you should be aware of to avoid unnecessary expense or conflict with the road’s owner or you neighbours.
This article considers the issues that can arise in relation to shared private roads and how they can be avoided.
What are shared private roads?
Roads can either be public or private. If they are public, they are maintained by the local authority. A private road is where no public right of way exists and is typically maintained at the expense of the landowner and/or other road users.
As such, a shared private road remains the responsibility of the landowner and/or other road users and extends to the maintenance and upkeep of the road.
When purchasing a property the conveyancer should be able to ascertain if access to the property is gained over a private road and if the road is shared with other users.
This information should be revealed to the conveyancer during the pre-contract due diligence process through the usual searches – the Local Authority Search and Highways Search and title investigation.
What issues can arise with shared private roads?
Issues can arise when establishing the following:
– Right of access – is a right of access granted to the property and are there any conditions of use
– Condition – to what specification will the private road be maintained to (including road surface, lighting, signs and parking);
– Responsibility – who will be responsible for maintaining the road surface
– Costs – how associated costs are to be apportioned between the road users; and
– Insurance – do the property owners need insurance, if so, who arranges this and how is it to be apportioned?
It is important that as a purchaser of a property with a shared private access is aware of any issues and the arrangements relating to the private access prior to purchasing the property as they may be responsible for the maintenance of the road and associated costs.
Without this information, you will be unaware of your future liabilities and this may cause conflict with the other users over responsibilities and expected contributions.
The potential pitfalls of shared private roads
When purchasing a property accessed by a shared private road, ideally the title deeds will clearly state the right of access and any existing formal arrangement relating to responsibility and costs of maintenance.
Further, the various users may have set up a special residents’ association or a private company which collects contributions, organises the maintenance and deals with the other issues above.
It is important that your conveyancing solicitor checks the arrangements in place, your obligations and the annual cost.
Do note that positive covenants do not run with the land and, as such, it may be a requirement for a buyer to covenant (provide a legal promise) that they will comply with the terms of the original positive covenant.
However, potential pitfalls arise when no right of access has been granted for the property to use the access road.
If this is the case, your conveyancer should request that the seller’s solicitor obtains a deed of grant for the property to have access over the private land which also sets out the responsibility for maintaining the access road and the property’s share of associated costs.
If this is not possible for any reason then it may be possible, depending upon the historic use of the shared access road to access the property, to claim a prescriptive right for long user.
Where there is no formal arrangement in relation to responsibility for and the cost of maintenance, it will be necessary to ascertain if any informal arrangement is in existence. Ideally, this would then be formalised by way of a deed.
The deed should state: who owns the road; the responsibility for maintenance; which properties have use of the road and how the costs are to be apportioned between the users.
What if I already own the property and experience issues?
If there is no formal agreement in place and works need to be done to the shared access you can take a pragmatic approach. This could involve obtaining quotes for the works, notifying the neighbours of the costs and requesting that they contribute a fair proportion of the costs.
Please note that this may not be a feasible option if your neighbours do not agree that the works are necessary or if you do not have an amicable relationship with them.
It is possible for the owner of the road to request that the Local Authority adopts the private road, however, it is ultimately their decision.
When requested, the Local Authority will inspect the road’s current condition and will expect the road to be in a condition where they will not need to incur immediate costs to repair.
If costs are expected, they may suggest that the property owner pays for these repairs prior to adopting the road.
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